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Comment by _heimdall | Hacker News Reader

> It's a massive and dangerous weapon in the hands of law enforcement (and others) that they can permanently damage someone's reputation

I'd love to see people take the real lesson here - an arrest proves nothing of guilt, and it's surprisingly easy for cops to falsely arrest someone (whether they intended to or not).

Our legal system is flawed enough as it is. When there are real concerns that can be raised over some cases that make it all the way to conviction we should be treating arrest records about as seriously a a politician promising the moon in a stump speech.

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This is a really great idea in theory. Do you have a proposal for how to get there without stepping over tens of thousands of broken lives? How do you go about educating an entire population that's accustomed to thinking that arrest=guilt that this isn't true, especially when their news sources continue to report as though the arrest is the only really interesting part of the criminal justice system?

I don't know how it would mesh with the US constitution, but Canada, while still having freedom of expression, has much stronger rules about police and courts releasing names. Judges will happily kick all reporters out of a courtroom if personal details are leaked in the press. They will castigate police and prosecutors if they release too much information that could taint the jury pool, etc.

There is no legal need for jails and police to release all of the details and photos that they do. A simple notice that a person is in police custody fulfills the argument against hidden arrests, while also not providing enough to damage a reputation. Announcing arrest reasons before charges have even been laid is unconscionable in a world where googling a name is this easy.

I always understood this to be a trust issue. "We" (loosely, I'm English) tend towards trusting the courts, so we allow them to keep secrets. The US was built on a healthy distrust of the state, so names were released so people aren't "disappeared".

But the US has moved much more towards "no smoke without fire", leaving the release of names in an antiquated place.

But my point is that releasing a name is different than releasing an unflattering booking shot and an arrest reason that hasn't been brought to a court, or even been referred to a prosecutor for validity.

Bogus charges get dropped all the time, but the mugshot and uncharged arresting reason are still posted for all.

This is a dangerous tool in the hands of a flawed institution. We know that people get arrested for trumped up charges, or outright fabrications that later get silently dropped.

Point being, if all you do is maintain a list of names of who you have in custody, you are fulfilling the American Habeas Corpus requirements. There's no constitutional requirement that mugshots need to be released publicly on the internet, there's no rule that the police need to announce what crime a person is suspected of before a charge has been laid. Americans can maintain a healthy distrust of police without wholesale public release on the internet of the details of an arrest.

> Do you have a proposal for how to get there without stepping over tens of thousands of broken lives?

An innocent unless proven guilty law. Employers, et cetera, may not conclude adversely from criminal charges absent a guilty plea or conviction.

That's such a huge gray area though. One doesn't know why an employer or anyone else decides to fire, or not hire, someone unless the employer documents the reason.

We already have discrimination laws on the books in the US that can't reliably be enforced for this exact reason. I have heard multiple accounts of very clear discrimination taking place in org hiring practices, but they are never documented and when discussed everyone is very careful with their words.

> One doesn't know why an employer or anyone else decides to fire, or not hire, someone unless the employer documents the reason

It won't be entirely effective. But it gives companies plausible deniability. I've been the one who voiced up because a sealed marital-dispute arrest came up in an archival background check. Having such a law would have meant doing so was unremarkable, a routine comment.

But are they allowed to not hire someone if doing so would draw public outrage (and financial harm) against the company? What about if the person was arrested for something that would cause that, but never actually charged?

In the US at least, being arrested (or even accused) of certain things can end your career. Because, even it it's proven you didn't do it, no company will touch you with a 10 foot pole, because people (who don't care/know that you were innocent) will avoid the company if they hire you.

There is no known solution to this problem.

"But are they allowed to not hire someone if doing so would draw public outrage (and financial harm) against the company?"

Could you face the same because of gay/trans/etc hiring? That's the point of anti-discrimination laws - that nobody is allowed to discriminate and thus the public outrage is diluted if all are hiring the "undesireables".

> are they allowed to not hire someone if doing so would draw public outrage (and financial harm) against the company?

Yes, that's the point of such a law. The company gets to deflect blame to it.

"Allowed to" pulls a lot of weight here, do you mean legally, socially, or something else?

I do agree though, there's no good solution to the problem. That's one of the biggest indicators for me that state regulation, at least enforceable regulation, isn't the right answer.

Companies, employees, industry organizations, etc can all come up with their own solutions that they're happy with though. A primary feature of federalism is allowing smaller groups to try different solutions, its pretty good at more quickly finding a solution that may actually work well enough universally

> may not conclude

Are you going to erase their memories Men-In-Black style ?

If you're constitutionally innocent until proven guilty, then you could create anti-discrimination protection laws that make it illegal to discriminate based on arrests without convictions.

It's already illegal to discriminate against a lot of things that people still choose to keep secret rather than rely on the law to protect them. Many people hide their diagnosed disabilities rather than trust that their employer will follow the law, because your advancement actually can be limited by exposing it even if it's technically illegal.

Anti-discrimination laws also fail to protect people from the social consequences of the unwarranted publicity.

These aren't the situations we're discussing. The arrest is found through a background check, not disclosure. This is about companies avoiding public backlash for hiring someone with an arrest.

Don't most companies have a code of conduct or reputation brand protection policies? Anything that could cause "public backlash" would violate company policy. Not sure how it works for hiring, but it seems to hold up for firing. A company should have a right to protect their brand, within anti-discrimination bounds. Being arrested and having an arrest record, wrongly or not, is not the same as intrinsic human properties, such as being--for example--black and/or female etc.

So how would that work for types of people who maybe are arrested without being charged as a result of a protected attribute? You mentioned black people, so is it OK that they are disproportionately squeezed out of jobs this way?

According to the constitution, innocence is an intrinsic human property.

> so is it OK that they are disproportionately squeezed out of jobs this way?

I didn't say it was right, but I do believe that looking at it from the perspective of the burden being placed on a company is looking in the wrong direction. The names should not even be released unless convicted or settled--or at earliest at pre-trial (since more evidence can come forward if it's there). Those without charges should not have their name in the public, and that's where the focus should be.

> how would that work for types of people who maybe are arrested without being charged as a result of a protected attribute?

As I said, I am unsure how it works for hiring, but for firing it could be a violation of company policy and that's what the firing is for, not a protected attribute.

Even you working through this makes clear how it is to draw this line though. One extreme is only making names public after a conviction. That line is at least clear, though it does have downsides. Another extreme is making names public as soon as a person has ant interaction with police, similarly that is at least a clear line but has obvious issues.

Lines like this can't be drawn easily. When in doubt inaction from the government should be the default. In this case that would mean the government not publicizing names at all, just process a case and move on.

But why should the public backlash over a company hiring someone with an arrest?

The public has direct interest in the company. More importantly, an arrest record alone means very little and if the person wasn't convicted they are supposed to be presumed innocent.

Uh, no, I'm talking about companies finding arrest records on a cursory Google search and avoiding that candidate in favor of other options, not because they don't want the backlash but because why would they hire them when there are other options?

If they aren't worried about some backlash for hiring a person arrested for domestic violence, then why would they pick another? If there's no potential for backlash, then there's no reason to avoid them or pick "other options".

I never said we need to educate people or that this idea, or any other for that matter, should be driven from a top-down approach. I wish people would learn it for themselves, not that the idea would be forced upon them.

The idea is simple though, and I don't think it requires anything other than old ideas.

A person is innocent until proven guilty. Period. End of story. An arrest proves very little and says nothing of guilt, just take it for what it is.

The news may portray things wrong but people should be expected to, and given the trust to, think for themselves. The news can talk about an arrest however they want, its up to hear it, think critically, and take whatever meaning from it that I choose to take.

I wish that too, but wishing people would be different than they are doesn't make it so. You have to act to make a change, and if there's no path to effect change in the people the next best thing is to change the laws to protect people from each other.

> You have to act to make a change

I'm on board with this only to the extent of better supporting informed consent. The answer, in my opinion, is never to have someone in charge that believes they know what is best and forces that solution on everyone.

That model is just too fragile, to dehumanizing to the those being mandated to, and too centralizing of authority that can be abused by someone later.

An arrest indicates probable cause a crime happened. It also for instance voided my complaint to the medical board when I complained I was treated without consent for a fabricated medical search for drugs without a warrant. It can also be used against you in immigration processes.

> An arrest indicates probable cause a crime happened

It does, though you have to take that with a grain of salt. It isn't hard to find examples of arrests that go no where and were based on weak probable cause.

The wright one puts behind probable cause also depends a lot on how much they respect the police. When people call for defending the police, for example, I wouldn't expect they care at all about an arrest record.

Sure. Would you agree to making arrest a protected category in the US so that it can't be used for decision making?

Coz employers, potential spouses, or heck even potential friends aren't going to share your loft ideals.

I was arrested once for being close to the scene of a near accident. No damage done, I was on foot, cop saw a brown kid standing nearby and arrested me for public intox. (I blew a 0.0 and was not under the influence).

Totally screwed my day, ticket was dropped but that didn't save me from getting hauled to jail, fingerprinted, and thrown in a cell for 6 hours before they wrote me a ticket and kicked me out at 3 in the morning in downtown ~20 miles from home with no cell phone and no one able to help me out.

Some situations (immigration?) count arrests against you even if there are no charges.

Oh that's so much deeper of a rabbit hole though.

Immigration is a case where its legally used against you. Technically I believe its a case where law enforcement isn't directed to go out of their way to enforce immigration laws, but if you interact with the police and they find you to be here illegally it becomes a situation where their guidance is to suddenly begin enforcing it.

> I'd love to see people take the real lesson here - an arrest proves nothing of guilt

And neither does a guilty verdict in a court of law. An arrest is a data point that we can use to inform our opinion of someone just as a verdict is.

> And neither does a guilty verdict in a court of law

We all agree to live in a system where a guilty verdict reached BT a jury of your peers means that you were legally found guilt. That still doesn't technically mean you did it, but it does mean you are legally deemed guilty.

Is the court system flawless? Absolutely not, I've seen that first hand. But guilt, in a legal sense, has a definition and is directly linked to that jury verdict.

We live in it whether we agree with it or not. Most people have limited options when it comes to the location they call home.

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