Punitive ambiguity: State-level criminal record data quality in the era of widespread background screening
| DOI | 10.1177/1462474521989502 |
| Published date | 01 July 2022 |
| Date | 01 July 2022 |
| Author | David McElhattan |
| Subject Matter | Articles |
Article
Punitive ambiguity:
State-level criminal
record data quality in
the era of widespread
background screening
David McElhattan
Purdue University, USA
Abstract
Prior research documents widespread deficiencies in the quality and completeness of
official criminal records in the United States. In an era when the social reach of criminal
records has expanded to an unprecedented degree, these deficiencies carry serious
consequences for criminal record subjects. The present study develops the concept of
punitive ambiguity to characterize the burdens of incomplete criminal records and
examines how they vary at the state level, providing evidence that punitive ambiguity
is racially patterned. Using data from the biennial Surveys of State Criminal History
Information Systems, multivariate analyses find that states where African Americans
make up larger shares of felony record populations report rap sheet dispositions at
significantly lower levels, pairing low criminal record data quality with extensive legally-
mandated background screening. The results carry implications for understanding the
racialized burdens of a criminal record, as well as broader processes in the develop-
ment of the American penal state that combine harsh formal punishments with chronic
administrative neglect.
Keywords
background checks, criminal records, penal state, punitiveness
Corresponding author:
David McElhattan, Purdue University, 700 W. State Street, West Lafayette, IN, USA.
Email: davidmcelhattan@purdue.edu
Punishment & Society
!The Author(s) 2021
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DOI: 10.1177/1462474521989502
journals.sagepub.com/home/pun
2022, Vol. 24(3) 367–386
In recent decades, lawmakers at the state and federal levels have enacted a range of
criminal background check requirements that have significantly expanded the
formal consequences of a criminal record. In addition to these legal barriers, the
U.S. criminal record system also suffers from persistent data quality issues that
compound the disadvantages facing record subjects. Gaps in disposition reporting
stand out as a particularly serious problem, with approximately 50% of nation-
wide rap sheets maintained by the FBI containing no indication of whether an
arrest resulted in a conviction, dismissal, acquittal, or other outcome (U.S.
Department of Justice, 2006). Incomplete rap sheets introduce lengthy delays
and uncertainties when record subjects apply for occupational licenses and many
types of regulated employment (Lageson, 2020), and they may systematically over-
state the severity of criminal records in light of the pervasive use of plea bargaining
and low conviction rates for lesser offenses (Kohler-Hausmann, 2018).
Responsibility for correcting the state’s errors often falls to record subjects them-
selves, who must invest substantial time and energy in navigating a complex set of
bureaucratic procedures to rectify their situation (Lageson, 2020).
This article argues that these twin developments — the growth of legally man-
dated background screening and persistent deficiencies in criminal record data
quality — reflect broader tendencies in the development of the contemporary
American “penal state” (Garland, 2013), where the pursuit of harshly punitive
policies has often come without commensurate investment in administrative infra-
structure, thereby intensifying the pains of punishment for criminalized subjects. In
the area of criminal records, the article argues that these dual processes result in a
situation of punitive ambiguity, wherein the chronic defects of the U.S. criminal
record system impose substantial uncertainties on record subjects and amplify the
harms of pervasive background screening.
After developing the concept of punitive ambiguity, the article examines how its
burdens are distributed at the state level. In light of the demonstrated ways in
which both the effects and determinants of criminal record consequences are
racially patterned in the U.S. (Behrens et al., 2003; Ewald, 2012; Pager, 2007),
the article focuses in particular on the relationship between the Black composition
of state criminal record populations and the quality of states’ criminal record
systems. Drawing from biennial panel data on the percentage of repository
arrest records that include final dispositions, the results of multivariate analyses
show that the burdens of punitive ambiguity are racialized, as shortfalls in criminal
record data quality are particularly severe where African Americans represent
larger shares of a state’s criminal record population.
The U.S. criminal record system
The focus of the present study is the set of government-run repositories that house the
criminal history records of individuals who have been arrested within a given state.
These repositories aggregate records from local courts and law enforcement agencies
into a single document, known as a rap sheet, that represents an individual’s history
368 Punishment & Society 24(3)
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