Bills promote digital scarlet letters for drunks, sex offenders

Ostracism inhibits the reintegration of offenders into law abiding society, which to my mind argues against a pair of ill-conceived bills proposed by Democrats which are on the Texas House Criminal Jurisprudence Committee agenda today.

A bill by Rep. Trey Martinez-Fischer, HB 23, would require sex offenders on social networking sites to "ensure" the following information is viewable by everyone who comes to their page: An "indication" that the person is sex offender, the type of offense that required their registration and the city of their conviction, "the person's full name, date of birth, sex, race, height, weight, eye color, and hair color," and their home address. The definition of a social networking site is broad (see Art. 62.0061(f) of the Code of Criminal Procedure). It wouldn't just apply to sites like Facebook or LinkedIn, but also to blogs and any other site through which one can post information and receive communication from the public. The law already requires registrants to report online pseudonyms; this bill would effectively prohibit them.

Another bill by Rep. Richard Raymond, HB 133, would require the Department of Public Safety to create a searchable website for people convicted of intoxication-related offenses that, for ten years after their conviction, would publish "the person's full name and last known address," and "a recent photograph of the person, if a photograph is available to the department." It would also require that this data be made available to police in a timely enough fashion that it could be accessed at a routine traffic stop, though inexplicably the Legislative Budget Board claims such functionality would have no significant cost.

These bills have little to do with public safety but instead are mostly about shaming. For Raymond's bill, police can already access criminal history information and nobody but voyeurs and mugshot rags will find any use for the website. As for Martinez-Fischer's legislation, there's already a public online sex-offender registry for those who care. But the registry is already too broad, including many who have never engaged in predatory behavior. Forcing registrants to wear a digital scarlet letter in all their social networking activities - including, for example, their LinkedIn profile where they're looking to find work - creates more harm than it prevents.

In any event, this is a counterproductive ploy borne of haughty, short-sighted puritanism bereft of Christian forgiveness. In Nathaniel Hawthorne's, The Scarlet Letter, the protagonist, Hester Prynne, found that her public labeling as an adulteress became "her passport into regions where other women dared not tread." Similarly, applying this sort of digital signage of shame may actually promote further misconduct by excluding those listed from polite company, preventing interactions with those who might lead them toward righteousness and confining their online interactions to a silo of sinners.

Last week, the Senate Criminal Justice Committee passed a bill out of committee that would remove the employer from public sex-offender registration information. The committee heard testimony about how DPS' decision to include such information - despite the Legislature having specifically declined to require it by rejecting the federal Adam Walsh Act - was deterring employers who'd otherwise be willing to hire ex-offenders. In the end, the goal is safety. Offenders who get jobs and reintegrate into society are less likely to commit new crimes. But these bills undermine that goal, leaving offenders walled off from normal human and economic activity. The House committee should reject such an ignoble purpose.

MORE: See coverage of the hearing from the SA Express-News.

On preconviction shaming and the role of the prosecutor

Fort Worth criminal defense attorney Richard Henderson authored a response in the Star-Telegram to the Tarrant County District Attorney Joe Shannon and assistant DA Richard Alpert, who held a splashy press conference last week announcing a new policy of publishing DWI defendants' names on their website as a shaming tactic (discussed here on Grits). Wrote Henderson:

I would support a joint effort by the DA and the defense bar to prevent DWI, so long as it does not include the publishing of names on the DA's website.

The Texas Disciplinary Rules for lawyers specifically state that a lawyer is not supposed to seek publicity to gain an advantage in a proceeding.

Prosecutors have their own special rule stating this. They are to seek justice, not merely be advocates and seek convictions.

Alpert has stated that merely publishing the names is not a comment on the case for giving evidentiary details.

This contradicts what Alpert states on the website:

"Over the years, we have tried to make it clear to the public that during a 'no refusal weekend' there will be no way to hide the evidence of their intoxication. This year we are adding the promise that they also won't be able to keep their charges a secret."

Such rhetoric goes beyond merely publishing the names. The direct implication of having the name of a person charged with DWI on the DA's website is that the person is guilty.

All people are presumed innocent until found guilty in court. A police officer's finding of probable cause for DWI is not legal proof, yet that is all that is required for a DWI arrest.

Potential jurors will have access to the DA's website and the names of persons accused of DWI.

I think Shannon and Alpert mean well, but they need to rethink this policy and remember their role in the system.

RELATED: Does preconviction shaming deter DWI or just obliterate the presumption of innocence?

Does pre-conviction shaming deter DWI or just obliterate presumption of innocence?

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:

Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

"I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said. "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"

Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

Weighing benefits and detriments of US public information policies about crime

A couple of recent items related to making police information public caught my eye. First, from Matt Kelley at Change.org's Criminal Justice Blog:

Arrests are public information, but exactly how public should they be? Twitter is testing the limits.

Every arrest in Denton, Texas, is chronicled on an unofficial twitter feed, built by an art student seeking to explore the possibilities opened by social platforms like twitter to share public information.

The mugshot at left shows a woman arrested yesterday for assault causing bodily injury. She hasn't been tried or convicted. Should her photo be on twitter (or on change.org)?

When Montgomery, Texas, District Attorney Brett Ligon threatened last week to post people arrested for driving under the influence on his twitter feed (he apparently hasn't started yet), some in the defense community balked at the idea of shaming people accused of crimes.
Law blogger Paul Kennedy wrote: My question is: should the DA dismiss a case against a motorist or should a motorist be acquitted by a jury of his peers, will (the DA) offer a public apology on Twitter as well?

I'm of two minds on this. Kennedy is right that district attorneys shouldn't pursue a shaming policy until they have a conviction. But at the same time I applaud the initiative of Brian Baugh, the University of North Texas student behind the Denton twitter blotter. He's not out to shame, he's out to make public information truly public.

I wrote in March that a 21st-century police blotter could be a new revenue stream for flagging media organizations. Baugh's twitter mashup takes us in that direction. If law enforcement agencies take up twitter blotters, they will need to include strong disclaimers that accounts posted are accusations and that nobody has been convicted. But initiatives like this aren't pure sensationalism -- they're one part sensational and one part public service.

We're obsessed with crime, and that's our problem, not one to be solved by the media or the police. If a news organization can use a crime map, an interactive live blotter or a mugshot gallery to drive revenue that pays for investigative reporting and arts coverage, then I'm all for it.
Public information isn't always pretty, but it's public for a reason. The more transparent we make our law enforcement agencies, the more we can hold them accountable for injustice. Would you prefer an online public blotter or indefinite secret detention?

On the other end of the spectrum, I was interested to read this account from a Baltimore Sun reporter on assignment in London about the differences between US and UK crime coverage, which largely stem from differences in access to information and the ability of reporters to publish details about cases pretrial:

I'm working to get my feet set and haven't hit the streets yet, but in chatting with reporters here at the Independent, I'm already hearing some pretty significant differences in how reporters cover crime here.

In Baltimore, and the U.S. generally, an arrest in a criminal case marks a big moment in the reporting process. Authorities have to file charging documents with the court, requiring certain evidence to be laid out. With the suspect formally identified and charged, the digging then begins on trying to find out more about the case and the suspect.

Here, it is the opposite. Once an arrest is made, there is essentially a blackout on information. Reporters are prohibited by the government from publishing information about the case, particularly anything about the defendant, out of concern that it will influence potential jurors.

Doing so runs the risks of fines and contempt of court charges. If a reporter gets major information on a case, but an arrest is made while they're putting their article together, they will have to sit on that info until the case has been adjudicated.

Of course, in America, our courts will call hundreds of people if necessary to find 12 who have not heard about the case, and they are instructed by the judge not to seek out information in newspapers or on TV during the proceedings. Reporters here couldn't believe what I was telling them about our access to court records and our ability to write about a case after arrest, and leading up to and during a trial. One expressed reservations that the media accounts would indeed sway a jury unfairly.

Another big difference is that police scanners, a fixture in U.S. newsrooms, aren't a factor here. They wait to hear from police about major crimes, and alerts can sometimes take days, reporters said. And remember, because of the contempt of court issues, if they find out about a crime after an arrest is made, they're essentially powerless to do any meaningful reporting because of the jury bias issues.

I was fascinated to read this account of UK crime reporting because their approach challenges some of my own beliefs that I've admittedly seldom adequately questioned.

On one hand, I value public information and grew up with a system where most court information is public; I've grown comfortable (complacent?) with that system, I'll admit, and it's been a long time since I've seriously considered my own first-order assumptions on that topic. On the other hand, much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio.

Is releasing limited information resulting in half-assed coverage hyping sensationalist spin slanted heavily toward police sources better than a situation where the release of information is delayed until after disposition of the case, the way we do, for example, with police officer disciplinary cases? I'd have to know more about when, how and what information is released in the UK to form an opinion.

There was a time years ago when I'd have automatically said the US approach is better, but after many years traveling around this block I'm no longer 100% confident that the way we handle information about criminal charges in the United States always serves the interests of justice. The whole "trial by media" phenomenon has gotten wildly out of hand and there don't seem to be many good solutions to the problem that I can see short of restricting information like they do in the UK.

A call for prosecutorial shaming

Doc Berman turns us on to a new paper by Prof. Adam Gershowitz at the South Texas College of Law which:

explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

Gershowitz's call for a "neutral set of third parties" responsible for "publicly identifying prosecutors who commit serious misconduct" sounds like a great idea for a blog if somebody with Westlaw access wanted to undertake it.

Logorrheic law profs on punishment law and policy

I attended this morning a symposium on "Punishment Law and Policy" sponsored by the Texas Law Review, specifically a panel on the subject of "Modern Crime Control Mechanisms" featuring Yale academics Dan Kahan and Donald Braman, and Jonathon Simons from UC Berkeley. It was interesting enough, I suppose, but as one audience member leaned over and said to me during Kahan's presentation, "logorrhea" was perhaps the defining characteristic of the event. Smart as they were, none of these fellows knew how to use four words to describe a concept that they could confuse using forty.

Still, the ideas discussed were useful, so I'll try to translate the highlights into more people-friendly prose.

Kahan presented on the subject of shaming sanctions, recanting his advocacy of them over the last decade after enduring withering criticism from liberals in the academy. Kahan first supported shaming sanctions, he said, because he thought the system needed more alternatives to incarceration. He'd considered shaming punishments viable because they convey the public's disapprobation of crime without the high social costs involved with incarceration. Fair enough. He'd backed off that position, he said, because those with "egalitarian" or "individualist" philosophies disapproved of them, including numerous people he respected.

If those advocating incarceration alternatives, he said, didn't support shaming sanctions (and obviously the tough on crime crowd prefers incarceration over any alternative), then maybe it was time to look for a different approach. Kahan came to believe the problem stemmed from differences in "cultural cognition," which is a high-falutin' way of saying that people's values inform their political positions in different ways. Well, duh! Welcome to politics, Mr. Kahan!

Kahan's past endorsement of shaming was essentially a political ploy, to hear him tell it -- an effort to come up with punishments besides incarceration that could be politically sold to the right wing. In doing so, though, he said shaming proposals ignored the values of liberals and thus didn't provide a stable platform for reform. By contrast, prison's meaning is more ambiguous, allowing people of different political stripes to find ways to support it for different reasons -- some because it's punitive, some because it's (theoretically) rehabilitative, some because it incapacitates the offenders, and some because it humiliates or shames them.

Kahan argued that alternatives to incarceration need to express condemnation more ambiguously than shaming, allowing people with different values to simultaneously tell different stories about what the punishment means in ways that affirm their own values. I thought that was a pretty good point. It's not simple to craft proposals with appeal across value systems, but when it can be done it's the best way to push reform in the political arena.

Concepts of "restorative justice," Kahan said, more readily fit the bill. They're seen as less punitive by liberals, but many conservatives see them as another brand of shaming aimed at placating the victim, whose moral authority in the equation they see as definitive.

(Doc Berman, BTW, has written extensively on the subject of shaming, including a number of excellent posts linked here.)

Donald Braman's presentation discussed his research into what people in poor communities want from punishment, as opposed, he said, to what liberal or conservative politicos think. He said poor folks wanted punishments to focus on helping offenders better contribute to society and reducing the collateral consequences of punishment. Instead of focusing on criminals' rights, he said, poor folks want to force offenders into more beneficial behaviors, especially drug treatment, job training, and literacy programs. These approaches, Braman said,

• Reinforce "pro-social norms" while incarceration erodes them,
• Protect pro-social relationships, especially family and employment relationships, and
• Are perceived by the community as just and fair.

Braman said in public opinion surveys 90% of the public supports these types of punishments as alternatives to incarceration, and that the level of support varies very little across political philosophies or partisan affiliation.

His most concrete proposal, though, struck me as one of those ivory tower moments that make you wish law professors made it into the courtroom more often. He thought that prior to sentencing, jurors should be polled to determine what they thought would be the most just, effective sentence, then that information should be aggregated through sentencing commissions to generate recommendations for new incarceration alternatives. The big problem: Virtually no criminal cases any more ever go to a jury. In Texas, e.g., 99+% of all cases today are resolved through plea bargains.

Jonathon Simons' presentation argued that Americans' view of punishment, even in its most punitive forms, stemmed from a "positivist" view, or a desire to protect society, to "keep them away from us," rather than an overarching desire to punish. In recent decades, he said, a "neoclassical" view of crime emerged which considers crminality essentially in market terms -- raising the "cost" of crime by increasing the penalty should cause it to go down. Now, he said, elite opinion was heading back toward a "neopositivist" view.

Beginning with this framework, he delved into the obscure work of Italian criminologist, Cesare Lombroso, who pioneered the "positivist" approach to criminology in the late 19th century. Virtually all of Lombroso's findings have been debunked, he pointed out, and many were facile, foolish or overtly racist. But Simons argued that Lombroso left behind a three-part legacy:

• Criminality is defined not by its relation to the law but by its relation to normality - the perception of criminals as definably, measurably different from the rest of us, he said, can be traced to Lombroso.
• Criminology is the most "political" of the social sciences. (Simons said criminology is so politicized that it sometimes is confused as being "apolitical" because the politics are so infused in the fabric of its study.)
• The object of criminology is construction of the nation, to overcome regional and social difference to embrace what's common among us.

I have to say, though I was interested in his historical diversions about Lombroso, I thought Simons' analysis too facile to be very useful. I think most folks have mixed feelings about crime and punishment, rooted in lots of different cultural values and sources that intermingle and sometimes contradict one another. The theoretical labels, in the context of such a complex cultural melange, just don't help all that much. In that sense, I found Kahan's advocacy of ambiguity in one's philosophical approach a better fit for the political arena. What's really needed isn't to identify and label the dominant philosophies of the day, but to craft proposals with which various philosophical approaches can all be comfortable.

Now if we can just get these fellows to all read George Orwell's essay on Politics and the English Language, and implement his suggestions, all the brainpower in that room might actually be of use to somebody out in the world.