White-Collar Felon Registries, Hester Prynne and The Drive-By Truckers

No white-collar recidivism here.

No white-collar recidivism here.

Although one must admire the historicist sensibilities of a state legislature that just reinstated the firing squad  as a methodology for execution, the Utah legislature’s passage of a bill to create a white-collar crime registry modeled on sex offender registries is unwise where it is not silly.

As a New York Times article notes:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society.

Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

What are the issues here?
Lillian Gish (1893 - 1993) as Hester Prynne, white-collar felon.

Lillian Gish (1893 – 1993) as Hester Prynne, white-collar felon.

First, a white-collar registry would be “scarlet-lettering” without an offsetting benefit.  Politically satisfying, perhaps, but it is a “pitchfork” approach that upends proportionality and other counterweights that prevent a criminal justice system from turning into an inquisitorial system.  (We have written about pitchfork mentalities before: Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed and  Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression).

On the subject of The Scarlet Letter, consider Hawthorne and the core meaning of the story, which is about confession and redemption rather than legalism’s unforgetting (and unforgiving) recollection of sin.
With regard to “unforgetting,” a registry is  the inverse of the “right to be forgotten” movement, as represented by a recent Eurpean Union case.  Consider this from a Mockingbird article, Divine Memory and The Right to Be Forgotten:
In Hawthorne’s Scarlet Letter, protagonist adulterer Hester Prynne is saddled with a big red letter “A” to be worn on her chest at all times. The letter acts as a shaming reminder to the greater community to keep their sexuality in line. While Hawthorne goes on to make Hester a dignified example of the power of confession, top hits of Google searches aren’t unlike a big letter “a” for many whose mistakes just won’t go away. Identity is at the core of both stories . . . .  Should a foreclosure 16 years ago be part of the plaintiff’s identity? Who gets to control the ever-important first impression- the politician on his rebound or the Google search?
I've got my eye on you.

I’ve got my eye on you.

 

Second, a registry is most justified when there is a substantial body of evidence that offenders are very likely to recidivate; where the victim-population is peculiarly and legally unable to protect itself; and where the harm is not meaningfully compensable.  Sexual depredation of children satisfies these criteria, and thus we see widespread legal and cultural acceptance of sex-offender registries.

 

Although the data is mixed, white-collar felons, like nonviolent offenders in general, have a relatively low rate of recidivism.  Further, white-collar offenders commit money-crimes, and money-remedies are available if the offender is solvent (admittedly, sometimes a big “if”).

He's made his list, he's checked it twice and now it's on the internet.

He’s made his list, he’s checked it twice and now it’s on the internet.

Third, are citizens of Utah, like minors, peculiarly unable to be clothed with legal rights and responsibilities?  Paternalism may have its place, but here? The legislative assumption seems to be that Utahans in general and Mormons in particular are so naive or insular that they need to be protected from themselves.  Or, in the words of a Guardian (UK) article: Utah creates white-collar crime registry to protect ‘trusting’ Mormon population.

What next? Hasidic Jews? Southern Baptists? Episcopalians?  (The last denomination is unfair. I have no data on the subject, but anecdotal evidence suggests that many of the most temporarily successful white-collar offenders are, in fact, Episcopalians).
Fourth, the Utah Attorney General claims that white-collar crime is “epidemic” in Utah.  Again, from the Times:
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
A handful of large dollar loss offenses do not an “epidemic” make.  According to the United States Sentencing Commission, fraud offenses account for only 5.2% of federal inmates — less than firearms offenses (18%) or pornography and prostitution (5.7%), and a figure dwarfed by drug offenses (51%).  The Bernie Madoffs of the world grab eye-popping dollar headlines, but the median loss in fraud offenses committed by offenders in the federal prison population is $696,295 — not a small sum, but a figure which is likely driven misleadingly high by Madoff-like numbers.  Even if it there were an epidemic, the solution is carefully crafted, clear laws that criminalize wrongful activities in a manner consistent with commonly accepted norms in Anglo American criminal law history.

A challenge getting to the keyboard.

A challenge getting to the keyboard.

Fifth, there is no reason to expect that the registry will provide any particular deterrence.  If the prospect of prison, financial ruin, loss of reputation, bankruptcy, dissolution of family, loss of law or CPA licenses, and debarment from federal contracting does not dissuade a bad actor, being put on a website will have little effect.

 

 

 

 

Law should be just, or it is not law, but on occasion it should be tempered with mercy, as the Drive-By Truckers point out in Mercy Buckets: