Are Criminal Records an Intrinsically Public Matter? Political Theory and The Publicness of Crime

Abstract This chapter poses the question: in what way might crime be understood as intrinsically public, and to what extent would that entail a public right to know? Two approaches to accounting for the publicness of crime are considered. The first draws from a key notion in political theory—the social contract—and explores the extent to which publicity about compliance is necessary for its validity or stability. The second focuses on the ways in which crimes might be understood as wrongs against the public, and therefore objects of legitimate public concern. Like arguments from the social contract, these latter rest on assertions about the role of the criminal law in establishing civil order and maintaining social stability. But they also draw on basic norms and intuitions from interpersonal morality, about the rights we all have to know who has wronged us. The chapter concludes that neither the social contract-based account nor the argument from the publicness of crime provides a sound grounding for a general right of citizens to know about the crimes of others, of the kind that would provide a default or prima facie entitlement to access criminal records. However, special entitlements to information should be accorded to certain categories of people, especially victims of crime.