Privacy, promotionalism and the proliferation of state-performed criminal record screening in the Netherlands: How a restrictive legal framework can still result in a steep increase of criminal background checks
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/17488958231161427 |
| Date | 01 September 2023 |
https://doi.org/10.1177/17488958231161427
Criminology & Criminal Justice
2023, Vol. 23(4) 549 –567
© The Author(s) 2023
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DOI: 10.1177/17488958231161427
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Privacy, promotionalism and
the proliferation of state-
performed criminal record
screening in the Netherlands:
How a restrictive legal
framework can still result in
a steep increase of criminal
background checks
Elina van ’t Zand-Kurtovic
Leiden University, The Netherlands
Miranda Boone
Leiden University, The Netherlands
Abstract
The Netherlands has endorsed a unique system regarding the management, disclosure
and screening of criminal records. Disclosure to third parties is strongly restricted, yet all
(potential) employees can request a government agency to provide a risk assessment − known
as a Certificate of Conduct (‘VOG’ in Dutch) − for every kind of employment application to
determine whether they are fit for a given job. This article explains how and why this Dutch
policy approach, deemed respectful of individual privacy rights, can nonetheless go hand in hand
with the promotion, proliferation and pervasiveness of criminal record screening. It challenges
the often dichotomic approach of the comparative literature on criminal record policies and
helps understand that privacy protection alone cannot be fully equated with the rehabilitation
and re-entry in society of people with a criminal history. Although the Dutch criminal record
system avoids any unnecessary publicity of criminal record data, it nonetheless triggers adverse
impairments on reintegration processes through stigmatisation and exclusion resulting from the
Corresponding author:
Elina van ’t Zand-Kurtovic, Institute of Criminal Law and Criminology, Faculty of Law, Leiden University,
Steenschuur 25, Leiden 2311 ES, The Netherlands.
Email: e.g.van.t.zand@law.leidenuniv.nl
1161427CRJ0010.1177/17488958231161427Criminology & Criminal JusticeZand-Kurtovic and Boone
research-article2023
Special Issue: Collateral Consequences of Criminal Records
550 Criminology & Criminal Justice 23(4)
ubiquitous use of Certificates of Conduct in the labour market. This questions the promotion of
the Dutch screening instrument as an exemplary model for criminal record information sharing
within Europe.
Keywords
Collateral consequences, criminal record screening, privacy, re-entry, rehabilitation,
the Netherlands
Introduction
Especially in recent decades, the reality of the burdensome ramifications attached to
being involved with the criminal justice system has attracted academic attention to the
so-called ‘collateral consequences’ of having a criminal record. The encroachment on
rights and opportunities by these collateral ramifications in areas such as employment,
housing, voting, education, and welfare benefits, to name but a few, challenges societies
to find the right balance between legitimate crime prevention goals and respect for values
like an individual’s privacy and post-sentence reintegration. Today, the challenge of find-
ing this balance has become even more apparent. Vetting and screening practices are now
ubiquitous following the emergence of enhanced comprehensive strategies of risk man-
agement aimed at tackling crime sooner and more effectively (Boone and Kurtovic,
2015). Such practices are fuelled by shifts towards pre-emptive strategies, the overregu-
lation of people’s behaviour and digitalisation of government activities (e.g. Garland,
2001; Schuilenburg, 2015).
Western countries have considered and adopted different approaches to maintaining a
legitimate and justifiable interference in the liberties of people with a criminal record for
crime control purposes. In the United States, technological developments have enabled
the widespread dissemination of digital criminal record data for extra-legal purposes
(Lageson, 2022), resulting in the extensive use of criminal record checks in virtually all
social domains (Jacobs, 2015). This information ‘activates’ over 40,000 collateral conse-
quences at the federal, state and local levels (Corda and Kaspar, 2022; NICCC, 2023). In
European countries, on the contrary, collateral consequences attached to having a crimi-
nal record are still considered to be limited in their scope, severity, frequency and dis-
criminatory impact (but see Corda et al., This issue; Larrauri and Rovira, 2019).
Comparative research has established that, for the most part, the continental European
approach to criminal record management is based on the concrete operationalisation of
the ‘right to be forgotten’. This is aimed at protecting the privacy of criminal record
information, as well as promoting offender rehabilitation and re-entry into society
(Herzog-Evans, 2011a; Jacobs, 2015). Mandatory occupational vetting and screening in
the EU context is generally limited to certain professions involving contacts with vulner-
able populations (Jacobs and Larrauri, 2016; Rovira, 2022). By and large, private
employers do not pursue criminal record checks beyond the legal requirements because
of the perceived confidential nature of criminal records (Larrauri, 2014).
This contrasts with the ‘right to know’ attitude dominant in most Anglosphere coun-
tries which favours transparency over privacy and stems from comparatively lower trust
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