Criminal records and the regulation of redemption: a critical history of legal rehabilitation in England and Wales

Abstract

The collation and use of criminal records by the state has conventionally been regarded as essential for the prevention and detection of crime, the administration of justice and the maximisation of public safety. For instance: the police may check the criminal records of suspects to determine whether they are ‘known offenders’; those working in the judicial sphere may investigate the prior ‘form’ of witnesses and defendants to adduce ‘bad character’ or determine an appropriate sentence; and educational authorities and social services departments may conduct criminal background checks to determine the ‘suitability’ of individuals to work with or foster children. Whilst not disputing that these official functions provided the original justification for the state’s development of criminal record repositories during the nineteenth and twentieth centuries, this thesis argues that other unofficial and quasi-penological functions are now served in the present by the collation, retention and dissemination of criminal background information.

This contention is examined through a critical history of legal rehabilitation in England and Wales as introduced under the Rehabilitation of Offenders Act 1974. This legislation determines if, when and under what circumstances a previous criminal record can be deemed ‘relevant’ for a number of purposes. Effectively, it regulates the extent to which a wide range of social actors can permissibly treat people with convictions less favourably than those in society without any criminal background. The thesis argues that legal rehabilitation as a social practice determines the boundaries of redemptive possibility in late-modern society by enacting a discriminatory biopolitics which uses criminal records as a moral apparatus to regulate life chances. Underpinned by neoliberal and authoritarian governmentalities, this biopolitics distinguishes a ‘law-abiding citizenry’ - constructed as deserving of access to social goods - from a ‘denizen class’ of convicted people whose ‘punishment’ is perpetuated through exposure to various exclusionary conducts.