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.
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.