“The Eternal Criminal Record” per James B. Jacobs as reported upon by the Boston Globe suggests that approximately 25% of the population in the U.S. have criminal records but approximately 9% have felony convictions. Moreover, the arrest rate per the F.B.I. for 2011 is approximately 4%. Whether these statistics are both valid, consistent with each other, and will hold over the succeeding years (for example, per the F.B.I., crime rates for major reported crimes seem on a downslide as of 2014 measured against 2011 rates) does not seriously reduce their present importance for those with criminal records and those that must make decisions inclusive of these records. That most criminal records (that is, 64%) do not indicate the commission of serious crimes seems a factor in influencing law professor Jacobs to suggest the establishment of a criminal records score akin to an individual’s credit score: The establishment of a private sector-developed algorithm to be applied to criminal records would result in increased fairness and the enhanced ability to weigh these records. This is undeniably a plausible solution to a problem.

Criminal records are generally public records in the U.S. (compare the EU). Undoubtedly, some information contained within the criminal records is highly relevant (for example, DWI convictions of an applicant to drive a school bus). Sometimes, not (for example, erroneous arrest based on mistake of identity). One concern is that a minor mistake in judgment will go into one’s permanent record, resulting in diminished personal economic and social opportunity. Attachment of a criminal record to an individual may create a self-fulfilling predictor variable; that is, it would lead to a diminished opportunity structure significantly constraining one’s ‘rational and legal choices’ while largely leaving untouched one’s neo-rational, illicit choices. While this may seem to be an unfortunate and highly personal consequence of the application of the TS doctrine (law students, among others, should be aware of the meaning of this informal, unwritten rule), a broader risk exists in this especially tight labor market that too many individuals will have nothing to lose (for a humorous take on this approach to decision-making, see Risky Business).

Those with little to lose may take yours without a second thought.