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As I understand, arrest records (records showing that someone was arrested by police) are public in the United States, at least in many states (see e.g. Are Arrest Records Public?).

However, it seems to me knowing about an arrest objectively provides little useful information (at least much less than e.g. knowing about convictions), because many people are arrested without being guilty, and many people are guilty without being arrested.

At the same time, people are being discriminated against based on arrest records, to the point that there is regulation forbidding not hiring someone based on "an arrest, in itself" (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act ).

In that view, why are arrest records made public? Would the right to privacy and non-discrimination not obviously override the interest of the public to know about arrests?

Is there any discussion or any politician on record about why arrest records should be/remain public?


Note: Arrest records not being public is actually the standard in many other countries - for example in Germany, arrests are not even part of the criminal record (Bundeszentralregister), only convictions (and other official judgments) are.

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    Since you mention Germany, let me abuse the comment space by referring you to this, which explains the difference in attitude: usaerklaert.wordpress.com/2008/06/11/… Quote: Entsprechend entsetzt sind Amerikaner darüber, dass die deutsche Polizei nicht nur „anonym“ arbeitet – sprich, keine Namensschilder trägt – sondern dazu noch „heimlich“ agiert und einfach Leute festnimmt, ohne deren Namen zu veröffentlichen.
    – Carsten S
    Commented Jun 12, 2022 at 12:49

5 Answers 5

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The US political system was designed by people who are profoundly sceptical of government power. Their Constitution is designed more to protect the citizens from the state than to protect the citizens from each other or to simplify the functioning of the state. The origin of "that government is best which governs least" seems to be disputed, but it fits right into American political theory.

Having arrest records and court proceedings public would make it possible for citizens to keep an eye on their law enforcement personnel. Concerned citizens can read about the cases, watch trends, and make an informed choice at the ballot box.

Of course one could also argue that there is a Jim Crow aspect to it, where powerful groups try to suppress others by the use of the justice system.

The German constitution you mention is simply one and a half centuries younger. It is longer, more complicated, and it was written with a different then-recent past in mind. To a larger degree than the American system, the German constitution expects the federal state to actively safeguard the human rights of the citizens, not just to refrain from hurting them.

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    The US also has the symmetric expectation it seems, that the public can harbor ill intents and "passions". That seems to be partially what the electoral college is about, allowing "sober minds" to reassess the electorate's choice if needed: historycentral.com/elections/Electoralcollgewhy.html Commented Jun 10, 2022 at 16:30
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    @ItalianPhilosophers4Monica, that doesn't seem to be reflected in the justice system, with elected judges and semi-random juries at many levels.
    – o.m.
    Commented Jun 10, 2022 at 17:16
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    This answer explains why citizens should have access to their own arrest records, it doesn't really explain why they have to be public.
    – Barmar
    Commented Jun 10, 2022 at 20:54
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    @Barmar, watching arrest records of others is much like watching the local vote count in an election -- few citizens actually use that right, but the fact that they can watch helps to keep the government honest. A single African-American, arrested by a white cop, is a single case. When they have all the records, citizens can look for patterns of abuse.
    – o.m.
    Commented Jun 11, 2022 at 4:21
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    @ItalianPhilosophers4Monica, I believe that the US policy is totally wrong. But I believe I see where it comes from, which was the question.
    – o.m.
    Commented Jun 11, 2022 at 9:06
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The information isn't meant to be used against the arrested person, but rather to protect them. The arresting authority has to make public who was arrested (with information that should identify them to anyone who knows them), when, where, on what grounds and whose authority, and where the person is held. The government can't legally "disappear" people, and if a police department had a habit of "nuisance" arresting people on some pretense and then releasing them without charge the next morning, anyone would be able to see that from the records.

All of this, of course, rests on the shaky assumption that the government actually follows the law even at times when it's inconvenient to do so.

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    I was on a jury where we cleared a person because their arrest was publicized. They were being tried for attempted murder. A passerby happened to witness the events, and the person arrested was the actual victim. They saw the arrest record, recognized the kid, and contacted the police and the defense team. By the time the person saw the arrest record, however, the trial was pending and went forward anyway. Without that witness, we would clearly have convicted him. With the witness everything made sense. Commented Jun 11, 2022 at 4:15
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    @JordiVermeulen I can totally see how this happens: someone attacks you, you fight back in self-defense, and the other party ends up more badly injured. Someone sees only the second half of the fight, and says you tried to kill someone; someone else sees the first half of the fight, and provides credible testimony that the events have been misinterpreted. (Note that "was the actual victim" doesn't mean "was the victim of attempted murder", just "was the victim not the perpetrator of the situation".)
    – IMSoP
    Commented Jun 13, 2022 at 10:08
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    @JordiVermeulen without the random witness, we would have probably voted 12-0 in under half an hour. The person charged was 17 and fled the scene. The other person was transported by ambulance. The witnesses clearly identified the teenager who was tried as an adult. What was not disclosed in the trial is that the person transported and the witnesses had multiple convictions for assault, robbery, and other violent felonies. However, as the prosecutor pointed out, even people with criminal histories can be victims. Commented Jun 14, 2022 at 3:28
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    @JordiVermeulen the prosecutor was very good at tying up all the loose ends in the story. The 17-year-olds only defense was "it was self-defense, but I don't know why the guy attacked me, he just did." That was his statement to police. Commented Jun 14, 2022 at 3:30
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    @JordiVermeulen Pennsylvania law says that if you leave the scene of a felony, that fact can be used as evidence against you in a trial. It doesn't quite make you presumptively guilty but it is treated as adverse evidence. Commented Jun 14, 2022 at 3:34
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The main reason for public arrests records were concerns about secret police carrying out arrests for political undesirables. Famous examples include the Gestapo (Germany prior to split), the Stasi (East Germany after split), and the KGB (Russia prior to the fall of the Soviet Union). Prior to the end of the second world war, the US President (Truman) even made public comments about the FBI turning into secret police.

When arrest records are public, it makes it difficult to arbitrarily kidnap political enemies as doing so now reveals extralegal activities and usually leads to violent protests and overthrow of governments (which were common place pretty much everywhere in the world at the time). Obviously, gun ownership levels in the US means the government has no chance to survive a violent rebellion.

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    @JoeW I think that's the point. Arrests by secret police are perfectly legal and don't have to be reported. Arrests by law enforcement in the US that aren't reported are legally kidnappings. Given the history, I'm surprised that Germany still has non-public arrests.
    – uberhaxed
    Commented Jun 10, 2022 at 19:09
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    I think you are missing my point and that secret arrests are happening even with public arrest records. What I am saying is that public arrest records doesn't prevent secret ones from happening.
    – Joe W
    Commented Jun 10, 2022 at 19:48
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    @JoeW I'm pretty sure if you look at the numbers of law enforcement in the US doing unrecorded arrests and compare to the Stasi, even without compensating for population differences you'll get orders of magnitude different numbers.
    – uberhaxed
    Commented Jun 10, 2022 at 19:56
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    What does the number of secret arrests by a secret police force from a communist government have to do with public arrest records and secret arrests in that same country?
    – Joe W
    Commented Jun 10, 2022 at 20:00
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    Unless that number is zero, it's totally irrelevant to the fact that secret arrests are, by definition, secret, and they're still happening regardless of what the majority get to believe about the level of transparency in the system.
    – Nij
    Commented Jun 10, 2022 at 22:48
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Historically, the question has largely been posed in the form, "what must or can be kept secret?" rather than "what must or can be revealed?".

The general rule is (and has been since before the American Revolution) that anything which isn't required to be kept confidential may be disclosed by the government.

Law enforcement agencies developed a custom and policy, long before there was clearly defined law one way or the other, of disclosing this information. The right to keep an interaction with the government secret has been the exception and not the rule.

Law enforcement agencies had good reason to have a symbiotic relationship with the press and other third parties in sharing information while carrying out their duties. By providing information, news about crimes often got out and caused citizens to report information about crimes that helped law enforcement agencies solve crimes.

This default rule one way or the other didn't matter very much until the last few decades, because the relevant information was highly decentralized, was contained on a single set of paper records that wasn't easy to copy or collate, and there was no one out there in the business of consolidating arrest records in a systemic and comprehensive manner.

Also, prior to the formation of formally organized police departments in the late 1800s, except in the exceptional cases where arrest warrants were issued, records of arrests made in the ordinary course of enforcing the law simply weren't maintained on a systemic basis at all, with the first records in a case usually being the record of commencement of criminal charges in court made by a prosecutor or a police officer or magistrate given the authority to do so.

Concerns about uses of arrest records for improper purposes, and the concern that there were important systemic differences between making decisions based upon arrest histories, rather than based upon criminal convictions, only arose when (1) records of arrests began to be maintained in a centralized fashion by modern law enforcement agencies, (2) technology and the earliest data brokering businesses started to collect and collate these records from many different jurisdictions on a comprehensive basis, and (3) civil rights laws were enacted that cast doubt on the propriety of make decisions in someone's life like hiring or extending credit, based upon arrests that did not result in convictions or arrest records containing erroneous information.

It has taken decades for this issue to gradually emerge to the point where policymakers have seriously started to reconsider the long standing status quo that has existed for as long as these records have been maintained regularly in the late 1800s, due to concerns about the risk of people facing discrimination based upon arrests that turned out to not actually led to criminal convictions.

Other answers have emphasized concerns about making sure that the government can't legally "disappear" people, and allowing criminal defense attorneys to locate potential clients, and those a reasonable policy considerations in 20/20 hindsight as we consider what would be the best policy today. But neither of those considerations was at the forefront at the time that the policy of making arrest records widely available to the general public when they first started to be kept was widely adopted. Those considerations mostly date to fifty or sixty years after this practice came into being historically and established the status quo.

In the pre-World War I era, the legal claim one could make in a Petition for Writ of Habeas Corpus, rather than policies of making arrest records public which often didn't even have the force of written law or regulation anyway, was the main tool to address the problem of people who were "disappeared" by the government without due process or public disclosure.

In countries like Germany (and most of Europe), the status quo was disrupted in World War II, and in the aftermath of that event, as the institutions of government, in general, and law enforcement procedures, in particular, were rebuilt from scratch, the considerations that were at the forefront of people's concerns then were very different than they were in the U.S. in the 1700s and beyond when its law enforcement practices began to emerge organically in a more or less uninterrupted progression to the present. There was no singular event or moment at which the U.S. has ever had to completely redesign its law enforcement system from a clean slate, and the concerns about the kinds of government abuse that people were worried about in the U.S. were different.

Even now, the big concern in the U.S. about disclosing arrest records is about abuses of those information by private parties in economic matters, and not abuses of that information by governmental parties or organized conspiracies like Latin American death squads.

However, it seems to me knowing about an arrest objectively provides little useful information (at least much less than e.g. knowing about convictions), because many people are arrested without being guilty, and many people are guilty without being arrested.

It depends upon what you want to use the information for and whose interests matter to you.

Basically 100% of people convicted of crimes are arrested before they are convicted. Something on the order of 50%-70% of people who are arrested are subsequently convicted of something. Equally important, lots of people who are arrested for something minor have done something that was at least anti-social, whether or not it was a minor crime or justified, and even if the charges are ultimately dropped out of mercy or because the seriousness of the offense doesn't justify the expense of invoking the legal process to charge that person with a crime.

Certainly plenty of people are arrested without any legitimate reason or due to good faith mistakes that are promptly cleared up. This percentage is particularly high if you aren't white, or if you are a young man who is poor or working class. But, maybe that percentage is 10%-20% of arrests. That is a huge percentage if you are worried about individual injustice, but it is a tolerable margin of error if you are engaged in a statistical screening process and care much more about entering into important relationships with people who are trouble free than about justice to people who you don't enter into relationships with, because you have an excess number of prospects which you are having trouble narrowing down anyway.

If you are trying to choose a courier for the a jewelry store, or someone to have access to nuclear secrets, the downside risk of letting someone slip through your background check when they shouldn't is so high that you may be comfortable with some injustice. If you are screening tenants for a $300 a month subsidized studio apartment, the appropriate balance between injustice to applicants and eliminating anyone with the slightest yellow flag of risk may be different.

Relying on arrests can result in unjust treatment of people who are unjustly arrested. But it is easy, comprehensive data to obtain, and if your primary objective is to exclude anyone who might have engaged in disorderly or criminal behavior even if it isn't very serious, so that your "finalists" in an employment application or rental application or background check of a potential spouse, there are a minimum number of such people, and the down side to you of excluding someone based upon an unjust arrest is small, arrest records can provide lots of useful information and indeed can be more useful to you than criminal conviction records which have very few false positives, but have too many false negatives of people who did something but didn't get convicted of it, relative to arrest records.

The question for someone making privacy policies with regard to arrest records (much as in the case of credit reporting) is how to balance to interests of someone reviewing those records in getting maximum power to screen out anyone who might be a problem, against the interests of the person whose records are being reviewed in being judged based upon false or misleading information.

Politically, people with an interest in screening people out have historically had more political power than people with an interest in not being judged unjustly, although this has shifted over time as the scope of arrest records databases and their use has changed, as people have become more skeptical of police good faith in making arrests, and as these tools have been used to focus on high end prospective employees, tenants, etc. rather than to screen masses of ordinary middle class and working class people.

Also, norms about what a person should be entitled to keep private and for what reasons have evolved, in a manner that has given more moral weight to a desire for privacy than was historically the case, as opposed to an attitude that third-parties should be entitled to get all the facts and judge for themselves what they should conclude from those facts.

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    plenty of people are arrested without any legitimate reason....particularly...if you aren't white What? That is just patently incorrect and the statistics do not support this claim at all. Maybe this was true decades ago, but thankfully we've come a long way.
    – joseph h
    Commented Jun 10, 2022 at 23:35
  • @josephh Really? Millions of people are arrested in events that don't lead to conviction and a majority of people stopped and frisked are innocent. See wsj.com/articles/… nyclu.org/en/stop-and-frisk-data ppic.org/publication/… bjs.ojp.gov/content/pub/pdf/cpp15.pdf ncbi.nlm.nih.gov/pmc/articles/PMC5678390 naacp.org/resources/criminal-justice-fact-sheet prisonpolicy.org/reports/repeatarrests.html
    – ohwilleke
    Commented Jun 13, 2022 at 18:21
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    @josephh you are clearly outside your knowledge area. Although this is not my area of research, you haven't looked at the data at all. I have in statistical support of others doing the research. The intersections of race, SES and gender all have different explanatory power than any dimension. Also, you are likely wrong about SES being tied strongly to criminal tendency. When people did not carry debit cards, it was true that crime was robbery by poor people. Now, it requires a college degree, training and money to rob people. Commented Jun 14, 2022 at 3:55
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    @josephh find a poor person that can that can write a piece of ransomware. Commented Jun 14, 2022 at 3:58
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    @sleske It is very different in the U.S. The normal pattern is for someone to be arrested, booked, and then have a bond hearing or to be eligible for release on bond according to standard rules in advance of a bond hearing. At a bond hearing, the prosecution and defense argue over how much money or property, and what kind must be posted as collateral for the defendant reappearing. This said, not infrequently there is pretrial release on "personal recognizance" without bond (often with conditions) or with a personal surety (basically a predetermined fine for failure to appear) both post-arrest.
    – ohwilleke
    Commented Aug 8, 2022 at 19:44
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To add to the other answer giving good reasons for making them public, this allows for all attorneys in the state to compete for the right to represent any person who has been arrested.

Once they are released on bail, they'll likely receive numerous letters from attorneys offering their services. This advances the goal of making sure that everyone gets the best possible representation if they are ever accused.

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    Why would they wait until the person got out on bail? The need for a lawyer is present as soon as you get arrested. And I don't think that reason had anything to do with why the records are public.
    – Joe W
    Commented Jun 10, 2022 at 19:49

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