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47 Wash. L. Rev. 659 (1971-1972)
Removing the Stigma of Arrest: The Courts, the Legislatures and Unconvicted Arrestees

handle is hein.journals/washlr47 and id is 675 raw text is: REMOVING THE STIGMA OF ARREST: THE COURTS, THE LEGISLATURES AND UNCONVICTED ARRESTEES 'Society punishes criminal conduct by incarceration and moral con- demnation.' Prior to imposing sanctions for the commission of crim- inal acts, the accused must be proven guilty beyond a reasonable doubt in accordance with adequate procedural safeguards. Yet each year thousands of unconvicted arrestees are subjected to the same stigma which society imposes on those who are convicted because the records of all arrestees, whether convicted or not, are retained and disseminated by law enforcement agencies. When an individual acquires an arrest record2 the data is sent to the state police and to the Federal Bureau of Investigation.3 The United States Attorney General is required by statute to exchange these records with authorized officials of the Federal Government, the States, cities, and penal and other institutions.''4 Despite this fairly restrictive scope of permissible dissemination, many persons and insti- tutions who are not authorized recipients gain access to arrest infor- 1. Hart, The Aims of the Criminal Law, 23 LAW & CONTEMP. PROB. 401, 402-06 (1958). Professor Hart, in the context of prescribing what legislatures should consider when specifying particular conduct as criminal, suggested that these were the two basic elements of criminal punishment. He asserted that a crime should be based on blame- worihiness and hence justify the punishment of social condemnation that results. 2. The term arrest record as used throughout this comment means both records of identification, such as fingerprints, photographs, measurements and voice prints, and the official record of arrest which indicates the suspect's name, time and place of arrest and the specific charge. 3. These steps are provided for by statute in many states. See, e.g., FLA. STAT. ANN. § 30.31 (Supp. 1972). 4. 28 U.S.C. § 534(a)(2) (1970). If the records are disseminated outside these au- thorized recipients, the exchange is subject to cancellation. Id. § 534(b). Although there are no decisions construing the term cancellation, numerous interpretations are pos- sible. It could mean that the exchange program between the Attorney General and the violating agency would be terminated. Two possible constructions would be more desir- able. Upon cancellation the Attorney General could require the violating agency to re- turn all records received and to retrieve those records disseminated outside authorized bounds. Cancellation could also be construed to authorize private suits in federal court by aggrieved persons to retrieve records illegally disseminated, or to recover damages for injuries sustained as a result of illegal dissemination. The Attorney General has specified by regulation that member banks of the Federal Reserve System and those banking institutions insured by the Federal Savings and Loan Insurance Corporation are among those other institutions with which the FBI is re- quired to exchange identification records. 28 C.F.R. § 0.85(b) (1965). 659

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