Too Much Transparency

Even though it’s taken me a week to find the time to get to it, South Carolina criminal defense lawyer Bobby Frederick’s post, The Scarlet Letter, has remained a source of some concern.  Bobby decries Doug Berman’s call for “transparency” in the criminal justice system:


Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled “Too Much Information, Not Enough Common Sense,” speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.


Bobby responds that this is wrong on so many levels, he doesn’t know where to begin.  Bobby addresses the fallacy of a conviction being reflective of moral turpitude, criminal propensity, particularly in a state like South Carolina where so many indigents end up pleading to shoddy charges because of lack of representation.  That’s certainly one issue.

What troubled me, however, goes more directly to the Scarlet Letter syndrome, that Doug’s “transparency” might be a fine goal systemically but fundamentally destructive societally.  People sometimes forget that these are real people who come before criminal courts, with real lives and families.  Focus on the integrity of the system comes at the expense of the human beings who find themselves engaged in it. 

When sentence is imposed upon a person who stands convicted of a crime, whether by verdict or plea, it reflects the societal judgment that the sentence is the proper punishment for the conduct.  Once that sentence has been served, the individual is then entitled to return to society and start anew, having “paid his debt to society.”  I realize this might seem an archaic concept to cutting edge scholars, but it’s awfully real to the people trying to reintegrate into society, abide by its laws and have a normal life thereafter.

The notion of a registry containing every crime and criminal, even if absolutely accurate, is a permanent brand, a Scarlet Letter, that imposes a punishment far more severe in certain ways than any term of imprisonment.  There will be no hope of escaping one’s past, of having made a mistake and turned one’s life around.  It will create a permanent underclass of unemployable, undesirable social rejects. 

Even if these people are guilty, let’s say guilty as sin so we remove the taint of inadequate representation, do we really want to condemn them to a life as social rejects?  What societal purpose is served by turning a one year sentence of incarceration into a lifetime sentence of shame?

In contrasting this concern with the benefits of transparency, I note Doug’s “thought experiment” offered in his comments:


Here is a simple thought experiment for any and all instinctual opposed to any and all criminal registries: imagine your sister/brother or son/daughter (or even mother/father) tells you she/he just got engaged to a person you’ve never met. Would you like the opportunity to find out whether the newly betrothed has a recent conviction for a violent crime (or serious drug dealing or fraud)? I would (and I do not see how I could possibly “haul my ass” to every federal/state US courthouse in order to find out).

Will anyone honestly claim and defend the notion that they would NOT want to be able to do a basic background check on a SURPRISE new family member? If so, please do lay out the argument in the comments; it is a desire for personal empowerment and transparency that drives my instinct to favor registries for all serious criminal offenders.

Also driving my instinct is the possible (cheap) deterrent value of broad criminal registries. I suspect that we might reduce at least some incidents of drunk driving and domestic violence and firearm offenses if/when potential offenders knew that registration was a regular and required part of the criminal justice system.

His point is well-taken.  I can’t imagine anyone who wouldn’t want access to such information in the protection of a loved one.  Of course, it would also be available for a myriad of other uses, including employment, housing, education as well.  I have no doubt that some believe it should, and are only too happy to use this information to protect themselves from potential harm and embarrassment.  And there is that potential.

To the extent that most of us remain part of the unconvicted group, this will prove to be an “us” against “them” choice, with the good guys taking the normative position that it’s more important to have access to information about the bad guys to protect themselves from potential harm than to allow the convicted felon a chance to rejoin society.  Acceptance of this normative view is the product of a generation of fearmongering, highlighting the  horrors of the convicted felon next door and ignoring those who have quietly and peacefully rejoined society as hard-working, law-abiding citizens.

Sex offender registration, itself a plague on society both for its breadth by including people who pose absolutely no threat of harming anyone, to its impossible limitations forcing registrants to live under bridges, at least had the particularized rational basis that child molesters were incapable of controlling their urges, prone to re-offend and their victims were society’s most vulnerable.  Even so, it’s clearly gotten out of hand, producing enormous societal harm in the process.

To extent the registration concept to all serious felonies, lacks much of this claimed basis.  It’s another instance of remembering the rubric while forgetting the rationale.  This isn’t to say that it wouldn’t be desirable on the part of a parent to know whether a daughter’s date has a felony conviction, but that its broader impact would be devastating on the ability of a large swathe of society to make a mistake, pay the price, and turn over a new leaf.

It’s really a normative choice between fear and a second chance. I believe that individuals who have been convicted of a crime and paid their debt to society deserve a second chance.

7 comments on “Too Much Transparency

  1. Libertarian Advocate

    Although I don’t have a lot of sympathy for criminals, particularly those who engage in acts of violence, theft and fraud, I find myself agreeing with you that a SCARLET LETTER system that permanently marks even one shot minor offenders to a life of shame and ultimate non-productivity anathema to the purpose of a criminal “justice” system.

  2. SHG

    I don’t see this choice being one that depends on sympathy, but clear purpose.  Indeed, punish the criminal, but once the punishment has been met, allow the human being the opportunity to return to a law-abiding life.

  3. Jeff Gamso

    Doug’s question (with the self-offered and clearly accurate answer that, of course most of us would want to know) raises also an important issue regarding the proper function of government.

    Perhaps I’m just being old fashioned and curmudgeonly here, but I don’t think it’s the government’s job to make sure that everything I’d like to know is gathered and made available to me.

    If the government is supposed to be in the business of protecting the public, and if targeted registration could actually be shown to protect the public, I’d grant some authorization to do it – while at the same time limiting access to the information solely to those government agencies that have a need to know.

    The problem is that even targeted registration doesn’t seem to protect anyone. Knowing where George lives doesn’t stop George from committing crimes. Knowing where Peter and Mabel live, too, just makes it harder to keep an eye on George. The number of targets keeps expanding beyond what can be usefully tracked, and registration gets balled up with public notification and residency restrictions, and special license plates, and whatnot so that any focus disappears. All that happens is, as you note, a guarantee that those who are convicted of crimes will never be able to integrate into society and will, therefore, either commit more crimes or become other sorts of drains on the system.

    (And let’s not forget that Jaycee Dugard was apparently being held by a man repeatedly studied by authorities and called out by neighbors for 18 years, despite registration and other purported safeguards. But that’s a digression.)

    But if the main function of registration is making it easy for me to check out my kid’s date or the guy who moves in next door, however much I might like to do that, it’s an abandonment of even the effort at protecting us. Instead, it becomes government endorsement of the armed camp, private police, vigilante model of public safety: Forget the cops and the courts and the law; just get the rope.

  4. BFrederick

    And the rationale of making information regarding who has a conviction is a non-starter. Criminal convictions are public information already, if you are looking at a specific individual. The only thing that a registry adds is giving you a current address and photo so that anyone can locate the person.

  5. SHG

    Not everywhere, however.  In NY, a person’s criminal history can’t be accessed without authorization, and I imagine that’s the case elsewhere.  I don’t know that it will always be the case, but I hope it does.

  6. John Neff

    Unfortunately there is a lot of incomplete and faulty information available about criminal records on the web. The are bots the search the web for arrests on police web blotters and booking data from jail web pages. One of my good deeds was that I was able to talk my sheriff out of posting the jail roster on the web. A good trend is that sheriffs are discontinuing that practice but the police continue to post their blotters.

    We have far too many folks who do not know or care about the difference between an arrest and a conviction. Another problem is that expungement of charges is a cruel joke because once the charge is listed on the web it cannot be expunged.

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