TWO CRIMINAL JUSTICE SYSTEMS.

• Author: Skolnik, Terry

1. INTRODUCTION 286 II. THE CONSEQUENCES OF A CRIMINAL RECORD 289 III. CRIMINAL RECORDS AND POLICING 291 A. Policing, Asymmetric Information, and Information Failures 291 B. Screening, Signaling, and Criminal Records 299 C. Investigative Technology and Constitutional Review 302 IV. CRIMINAL RECORDS AND BAIL 304 A. Bail, Information Asymmetries, and Risk 304 B. Bail, Criminal Records, and Cognitive Biases 309 V. CRIMINAL RECORDS AND PLEA BARGAINING 312 VI. CRIMINAL RECORDS, CONVICTIONS, AND PUNISHMENT 316 A. The Prior Offender Penalty and Subconscious Bias 316 B. The Silence Penalty and Subconscious Bias 320 C. Criminal Records, Recidivist Premiums, and Punishment 322 VII. ALTERING CHOICE ARCHITECTURE IN THE CRIMINAL JUSTICE SYSTEM 325 A. Automatic Record Suspensions: From Opt-in to Default Enrolment 326 B. Presumptive Inadmissibility, Anchoring, and Principled Asymmetries 331 VIII. CONCLUSION 336 In theory, there is one criminal justice system. According to this view, everyone is subject to the same criminal justice system that is governed by the same rules. Only certain classes of defendants-such as young offenders and members of the Armed Forces-are subject to a distinct criminal justice system with different rules and procedures. (1)

   In practice, it is as if there are two criminal justice systems: one for defendants with a criminal record, and one for first-time offenders. At each point of the criminal justice process-policing, bail, plea bargaining, trial, and punishment-the criminal justice system treats those with criminal records worse than those without (2) A criminal record increases the likelihood of police contact, justifies harsher pre-trial coercion, pushes repeat offenders to accept worse plea deals, incentivizes judges and juries to convict defendants based on their bad character, discourages defendants with a criminal history from testifying, and invites harsher sentences. (3) These adverse effects are compounded for Indigenous persons, racialized individuals, those who face mental health challenges, and impecunious defendants against whom the criminal justice system is already skewed. (4) Prior convictions decrease employment prospects and access to housing, which increases the likelihood that individuals with a criminal history will become re-involved with the criminal justice system after they serve their sentences. (5) Defendants with and without criminal records are subject to such qualitatively different treatment that it is as if they are subject to different criminal justice systems. (6)

   Building on the interconnected insights of information economics and behavioral economics, this article highlights the reasons why it is as if there are two criminal justice systems. This article argues that the interplay between these two areas of economics account for why justice system actors use cognitive biases to mitigate information failures in the criminal justice process. Yet, the cumulative effects of information failures and cognitive biases ultimately subject defendants with criminal records to discriminatory treatment and worse criminal justice outcomes than first-time offenders.

   For instance, police officers can interpret prior convictions as a signal that individuals are involved in criminal activity, which results in greater law enforcement scrutiny. (7) During the bail process, prosecutors screen defendants' criminal history to assess risks of pre-trial misconduct. (8) Yet three cognitive biases-loss aversion, the availability heuristic, and the representativeness heuristic-may lead prosecutors to overestimate these risks and err on the side of greater pre-trial coercion. (9) Then there is the use of criminal records at trial and during sentencing. Judges and juries are more likely to convict defendants who are cross-examined on their prior convictions, which contributes to confirmation bias that the defendant is guilty. (10) Criminal records can disincentivize defendants from testifying at trial, which can result in a wrongful conviction. (11) Finally, recidivists tend to receive harsher sentences than first-time offenders. (12) A criminal record is not only one of the most powerful signaling and screening tools in the criminal justice system; it also activates justice system actors' cognitive biases against repeat offenders.

   The criminal justice system's disparate treatment of repeat offenders is objectionable for various reasons. It worsens racial and socioeconomic discrimination in the criminal justice process, compounds the disadvantages experienced by marginalized defendants, increases the prospect of wrongful convictions, and produces counterproductive consequences.

   The structure of this article is as follows. Section II describes the consequences of a criminal record. Drawing on signaling and screening theory in information economics, sections III and IV explain why criminal records play a crucial role in policing and in the bail system. Section V sets out how the combined effects of information failures and cognitive biases may lead prosecutors to subject prior offenders to greater pre-trial coercion. Section VI explains why judges and juries are more likely to convict defendants with criminal records and punish them more severely. Section VII concludes this article and advances concrete proposals to address the widening gulf between Canada's two criminal justice systems. This article argues that the criminal justice system's choice architecture-meaning the way that the justice system presents and structures decision making-can help address some of the most egregious consequences of criminal records. (13)

2. THE CONSEQUENCES OF A CRIMINAL RECORD

   A criminal record can result in serious consequences. First, prior convictions decrease employment prospects. (14) Studies indicate that employers may be less willing to hire individuals who have a criminal record. (15) Furthermore, these studies reveal that Black persons may be disproportionately impacted by discrimination based on prior convictions, which worsens existing structural inequalities. (16) Some experimental studies show that job applicants with prior convictions are less likely to receive callbacks from prospective employers compared to those with no criminal record. (17) A professional order may not license an individual who has a criminal record or may subject them to additional scrutiny. (18) Furthermore, the law may not protect individuals against discrimination based on a prior conviction. Some provinces' human rights codes do not categorize a criminal record as a prohibited ground of discrimination. (19)

   Second, criminal records can decrease access to housing. (20) Landlords increasingly screen prospective tenants for their criminal history. (21) Part of this may stem from the expansion of landlords' legal liability for tenants' conduct in certain circumstances, or a general preference to mitigate risk. (22) Yet lack of access to housing can hinder ex-offenders' reintegration within the community. (23) Criminal record checks of prospective tenants may disproportionately impact racialized persons who are already over-represented in the criminal justice system, and may contribute to racial segregation within communities (24)

   Third, a criminal record can result in important immigration-related consequences. (25) Permanent residents who commit crimes and receive a criminal record may lose their permanent residency status. (26) They may be subject to a removal order and face deportation. (27) In contrast to appeals for criminal convictions, individuals may have greater difficulty appealing or staying removal orders based on their criminal record. (28) Notably, provisions of the Immigration and Refugee Protection Act limit foreign nationals' and permanent residents' right to appeal their inadmissibility based on security concerns or serious criminality. (29)

   Lastly, prior convictions impose a range of other limitations. Criminal records may impede international travel and limit individuals' opportunities to work outside of Canada. (30) Prior convictions may also impact a person's custody over their child. (31) Individuals who have a criminal record may be disqualified from jury service. (32) A witness' credibility can be impeached based on their criminal record. (33) Many of the consequences associated with a criminal record can last for years. Individuals who are convicted of an indictable offence can apply for a record suspension ten years from the date that they completed their sentence. (34) The relevant period is five years for those convicted of a summary conviction offence. (35)

3. CRIMINAL RECORDS AND POLICING

   1. POLICING, ASYMMETRIC INFORMATION, AND INFORMATION FAILURES

      A defendant's criminal record impacts their criminal justice system involvement long before they are arrested, charged, and tried for a crime. This section demonstrates how patrol officers must investigate crimes and enforce the law despite imperfect information. It shows how they attempt to remedy this lack of information by screening individuals for a criminal record, which influences who officers choose to investigate.

      Street-level policing is rife with information failures. The term information failure connotes an "asymmetry of information" between two parties that interact with one another. (36) This asymmetry advantages the more knowledgeable party and disadvantages the less knowledgeable one. (37) The former can exploit the latter's lack of information to their advantage. (38) Several examples highlight the ubiquity of information failures. Landlords know far more about the quality of their apartments than prospective renters. They may hide their property's defects from tenants, who only discover the problems once they sign the lease, move in, and are locked into a contract. (39) Similarly, salespersons are able to exploit consumers' ignorance and sell them lower quality products that yield a higher profit margin. (40) Doctors...