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when i first began studying the collateral consequences of felony convictions in the 1990s, there were few authoritative sources on the practice. one of the best was a 1996 50-state report by then-U.S. pardon attorney margaret colgate love. margy served from 1990 to 1997 under presidents bush (I) and clinton (I), and she always provides a tough non-partisan critique of any administration’s pardon record. more recently, she prepared a great clemency “resource guide” that offers a starting point for anyone seeking to restore their rights after a felony conviction (more personally, i should add, she helped me make sense of the differing rules governing felon voting rights and their restoration in each state).

today’s crimprof blog features an op-ed by ms. love on the new national sex offender public registry. Her main concerns are (1) the registry’s data quality; and, (2) the absence of controls on its use. while some hail the registry as a “proactive and meaningful step in protecting a child’s life,” the former pardon attorney takes a different view — calling it a “half-baked mean-spirited incitement to vigilante Justice.”

gosh, margy, why don’t you tell us what you really think?

Here are some highlights of ms. love’s editorial:
… [it] relies entirely upon unvetted state registries that are notoriously incomplete and inaccurate
… most of [the offenders listed] had very dated and minor convictions, and had had no adverse contact with the law for decades…their houses and offices, marked with a little red flag like they used to put on the door of a plague house in the middle ages.
… outrageous that the federal government — the Justice Department no less — would rush to publish a list like this without 1) taking any responsibility for the accuracy of the information on it or warning about its shortcomings; or 2) giving the public any guidance at all about how they are supposed to use it.
… the clear suggestion that all 500,000 registered sex offenders in the United States are “predators” is one of the most irresponsible I’ve seen come out of the Justice Department, ever.
… the Attorney General is looking into how the FBI can share its criminal history information …the FBI’s information is almost as unreliable … [leading to] the same categorical discrimination
… The Justice Department should be trying to address the important privacy and due process issues raised, rather than leading the charge to stir up a public witch-hunt.
… The people most hurt by it are those who are already down and are easy to victimize.
… There are labor organizations and advocacy groups working on the important privacy and due process issues raised by these initiatives, and Human Rights Watch has written a letter to the Attorney General expressing concern about the Sex Offender Registry. Where are the lawyers?

i have not investigated the registry (beyond looking up my neighborhood), but i am troubled by ms. love’s report and opinion on its use. but this is a call-to-arms for lawyers — where are the sociologists and criminologists? i’m afraid it would be a pretty lonely crusade (that might land one in prison if certain movies are to be believed). i’m revising a piece with jeff manza and melissa thompson on ex-felons as a caste-like status group. it seems far-fetched until you see such registries in action and consider their easy extension beyond sex offenders. are sex offenders so different from, say, murderers that we wouldn’t create a more comprehensive registry? it could easily encompass anyone convicted (or arrested — the private search firms use arrest data) on felonies (why not misdemeanors, as long as we have the data?) as an adult (aww heck, why should the juvenile court hoard all those records down in the basement?). the notion of a permanent stain or stigma seems ever more plausible to me in an age of free-and-easy information.

paradoxically, we now have the technology to apply a permanent mark at the very historical moment that life-course criminology establishes that everybody desists from crime. so, at the risk of oversimplifying, here’s how i see the mismatch: there are social, political, and (most importantly, in my view) technological pressures toward treating criminality as a fixed characteristic of individuals, even as the science paints a picture of malleability and movement away from crime in adulthood. such pressures will clearly frustrate reintegrative efforts, but unlike ms. love i don’t see a way out of the dilemma — Justice department database or not, the information systems genie seems to be out of the bottle. i think the better long-term plan might be for sociologists and criminologists to attempt to provide an unflinching, evidence-based assessment of risk across different offense groups and the relative costs and benefits of stigmatization and reintegration.

when i first began studying the collateral consequences of felony convictions in the 1990s, there were few authoritative sources on the practice. one of the best was a 1996 50-state report by then-U.S. pardon attorney margaret colgate love. margy served from 1990 to 1997 under presidents bush (I) and clinton (I), and she always provides a tough non-partisan critique of any administration’s pardon record. more recently, she prepared a great clemency “resource guide” that offers a starting point for anyone seeking to restore their rights after a felony conviction (more personally, i should add, she helped me make sense of the differing rules governing felon voting rights and their restoration in each state).

today’s crimprof blog features an op-ed by ms. love on the new national sex offender public registry. Her main concerns are (1) the registry’s data quality; and, (2) the absence of controls on its use. while some hail the registry as a “proactive and meaningful step in protecting a child’s life,” the former pardon attorney takes a different view — calling it a “half-baked mean-spirited incitement to vigilante Justice.”

gosh, margy, why don’t you tell us what you really think?

Here are some highlights of ms. love’s editorial:
… [it] relies entirely upon unvetted state registries that are notoriously incomplete and inaccurate
… most of [the offenders listed] had very dated and minor convictions, and had had no adverse contact with the law for decades…their houses and offices, marked with a little red flag like they used to put on the door of a plague house in the middle ages.
… outrageous that the federal government — the Justice Department no less — would rush to publish a list like this without 1) taking any responsibility for the accuracy of the information on it or warning about its shortcomings; or 2) giving the public any guidance at all about how they are supposed to use it.
… the clear suggestion that all 500,000 registered sex offenders in the United States are “predators” is one of the most irresponsible I’ve seen come out of the Justice Department, ever.
… the Attorney General is looking into how the FBI can share its criminal history information …the FBI’s information is almost as unreliable … [leading to] the same categorical discrimination
… The Justice Department should be trying to address the important privacy and due process issues raised, rather than leading the charge to stir up a public witch-hunt.
… The people most hurt by it are those who are already down and are easy to victimize.
… There are labor organizations and advocacy groups working on the important privacy and due process issues raised by these initiatives, and Human Rights Watch has written a letter to the Attorney General expressing concern about the Sex Offender Registry. Where are the lawyers?

i have not investigated the registry (beyond looking up my neighborhood), but i am troubled by ms. love’s report and opinion on its use. but this is a call-to-arms for lawyers — where are the sociologists and criminologists? i’m afraid it would be a pretty lonely crusade (that might land one in prison if certain movies are to be believed). i’m revising a piece with jeff manza and melissa thompson on ex-felons as a caste-like status group. it seems far-fetched until you see such registries in action and consider their easy extension beyond sex offenders. are sex offenders so different from, say, murderers that we wouldn’t create a more comprehensive registry? it could easily encompass anyone convicted (or arrested — the private search firms use arrest data) on felonies (why not misdemeanors, as long as we have the data?) as an adult (aww heck, why should the juvenile court hoard all those records down in the basement?). the notion of a permanent stain or stigma seems ever more plausible to me in an age of free-and-easy information.

paradoxically, we now have the technology to apply a permanent mark at the very historical moment that life-course criminology establishes that everybody desists from crime. so, at the risk of oversimplifying, here’s how i see the mismatch: there are social, political, and (most importantly, in my view) technological pressures toward treating criminality as a fixed characteristic of individuals, even as the science paints a picture of malleability and movement away from crime in adulthood. such pressures will clearly frustrate reintegrative efforts, but unlike ms. love i don’t see a way out of the dilemma — Justice department database or not, the information systems genie seems to be out of the bottle. i think the better long-term plan might be for sociologists and criminologists to attempt to provide an unflinching, evidence-based assessment of risk across different offense groups and the relative costs and benefits of stigmatization and reintegration.

the strib reports that a woman serving a probation sentence for theft voted in a closely contested minnesota mayoral race last year, casting a ballot in a race in which her husband won by a slim 8-vote margin. Hennepin County Attorney Amy Klobuchar, who happens to be running for US senate, has charged Linda Gilbert with a felony for registering to vote while ineligible.

Court documents indicate that in July, when authorities interviewed Linda Gilbert about the matter, she admitted to voting even though she knew she had lost her right to do so. Klobuchar said her office usually handles 15 to 20 election crime cases — involving ineligible voters or people voting more than once — each year after a major election cycle.

ms. gilbert, the current first lady of long lake, minnesota, must be very honest to admit that she knew she had lost the right to vote and voted anyway. still, it seems hard to believe that a thief who did 60 days in the workhouse is now going to catch a new felony for voting — in her husband’s election. here’s the kicker, though:

Such crimes lack the same gravity as a homicide, Klobuchar said, but they still need to be prosecuted. “We have to protect the integrity of our elections.”

i’m wondering about that “lack the same gravity as a homicide” quote. is it a joke? nowhere in the story is it mentioned that felony probationers can vote in 19 states or that the minnesota legislature considered enfranchising probationers and parolees this spring (i drafted a short report on the impact of this change in march). minnesota makes heavy use of probation and light use of incarceration, so ms. gilbert and thousands of others would have been able to vote without risking a felony conviction. under the proposal the total disenfranchised would have shrunk from an estimated 55,551 to 13,825, or from about 1.5 percent to about 0.4 percent of the voting-age population (and from about 12 percent to 3.5 percent of the African American voting age population).

the strib reports that a woman serving a probation sentence for theft voted in a closely contested minnesota mayoral race last year, casting a ballot in a race in which her husband won by a slim 8-vote margin. Hennepin County Attorney Amy Klobuchar, who happens to be running for US senate, has charged Linda Gilbert with a felony for registering to vote while ineligible.

Court documents indicate that in July, when authorities interviewed Linda Gilbert about the matter, she admitted to voting even though she knew she had lost her right to do so. Klobuchar said her office usually handles 15 to 20 election crime cases — involving ineligible voters or people voting more than once — each year after a major election cycle.

ms. gilbert, the current first lady of long lake, minnesota, must be very honest to admit that she knew she had lost the right to vote and voted anyway. still, it seems hard to believe that a thief who did 60 days in the workhouse is now going to catch a new felony for voting — in her husband’s election. here’s the kicker, though:

Such crimes lack the same gravity as a homicide, Klobuchar said, but they still need to be prosecuted. “We have to protect the integrity of our elections.”

i’m wondering about that “lack the same gravity as a homicide” quote. is it a joke? nowhere in the story is it mentioned that felony probationers can vote in 19 states or that the minnesota legislature considered enfranchising probationers and parolees this spring (i drafted a short report on the impact of this change in march). minnesota makes heavy use of probation and light use of incarceration, so ms. gilbert and thousands of others would have been able to vote without risking a felony conviction. under the proposal the total disenfranchised would have shrunk from an estimated 55,551 to 13,825, or from about 1.5 percent to about 0.4 percent of the voting-age population (and from about 12 percent to 3.5 percent of the African American voting age population).

The seattle times has been following the case of michael mullen, who confessed to killing two registered sex offenders in bellingham, washington. i wrote about the murders last month, suggesting that public availability of specific addresses and offense details might be a net loss to public safety. mullen wrote a letter to reporter mike carter at the times, which (after some hand-wringing) it decided to publish online in mullen’s original hand:

“[s]hould we post the letter itself online? Most who had read it said yes. Here’s why: Reading the handwritten letter was a different experience from reading the story. It was methodical. The penmanship doesn’t change. Mullen thought out the message just as he said he had thought out the crime. If you are concerned, scared or just fascinated, you want to understand what he had to say. … “Certainly no one in his right mind would agree with vigilante Justice,” Carter said, “but people are very frustrated about how society deals with sexual predators.” He added, “the overarching sentiment (from readers) has been one of people agreeing with Mullen’s sentiments, if not his methods.”

is there a real danger that publicizing mullen’s motivations will lead people to agree with his sentiments or inspire other vigilantes? as “p.s. punk” predicted in a comment to my earlier post, mullen spins a tale of righteous slaughter and wishes to make himself a martyr. he claims that he went to “interview” the three former sex offenders living at the house, checked their IDs to confirm identification, and let one of them go after he “showed remorse or guilt.” he claims that the two he killed “blammed [sic] their victims — they showed NO remorse.”

such statements show how easily a vigilante assumes the roles of judge, jury, and executioner. i’m most interested in how his comments reveal the dark side of community notification. here’s what the confessed killer said on the subject:

“the State of Washington, like many states now lists sexual deviants on the Net. And on most of these sites it shares with us what sexual crimes these men have been caught for, and most are so sick you wonder how they can be free … In closing, we cannot tell the public so-and-so is ‘likely’ going to hurt another child, and here is his address then expect us to sit back and wait to see what child is next”

mullen clearly blames the victims for their deaths, but he also implicates institutions that make the information public (i’m sure he’ll be pointing other fingers elsewhere as we get closer to his trial). i’m working on a project now coding the information provided by each state on sex offenders and other felons. reading through the individual case records that some states post, one cannot help but see them as “sick” monsters. one sees a bad picture, a horrific description of a crime, and an address. even if the acts are decades old, there is typically little countervailing information that would help us understand their current circumstances or the extent to which they pose a threat to public safety today.

The seattle times has been following the case of michael mullen, who confessed to killing two registered sex offenders in bellingham, washington. i wrote about the murders last month, suggesting that public availability of specific addresses and offense details might be a net loss to public safety. mullen wrote a letter to reporter mike carter at the times, which (after some hand-wringing) it decided to publish online in mullen’s original hand:

“[s]hould we post the letter itself online? Most who had read it said yes. Here’s why: Reading the handwritten letter was a different experience from reading the story. It was methodical. The penmanship doesn’t change. Mullen thought out the message just as he said he had thought out the crime. If you are concerned, scared or just fascinated, you want to understand what he had to say. … “Certainly no one in his right mind would agree with vigilante Justice,” Carter said, “but people are very frustrated about how society deals with sexual predators.” He added, “the overarching sentiment (from readers) has been one of people agreeing with Mullen’s sentiments, if not his methods.”

is there a real danger that publicizing mullen’s motivations will lead people to agree with his sentiments or inspire other vigilantes? as “p.s. punk” predicted in a comment to my earlier post, mullen spins a tale of righteous slaughter and wishes to make himself a martyr. he claims that he went to “interview” the three former sex offenders living at the house, checked their IDs to confirm identification, and let one of them go after he “showed remorse or guilt.” he claims that the two he killed “blammed [sic] their victims — they showed NO remorse.”

such statements show how easily a vigilante assumes the roles of judge, jury, and executioner. i’m most interested in how his comments reveal the dark side of community notification. here’s what the confessed killer said on the subject:

“the State of Washington, like many states now lists sexual deviants on the Net. And on most of these sites it shares with us what sexual crimes these men have been caught for, and most are so sick you wonder how they can be free … In closing, we cannot tell the public so-and-so is ‘likely’ going to hurt another child, and here is his address then expect us to sit back and wait to see what child is next”

mullen clearly blames the victims for their deaths, but he also implicates institutions that make the information public (i’m sure he’ll be pointing other fingers elsewhere as we get closer to his trial). i’m working on a project now coding the information provided by each state on sex offenders and other felons. reading through the individual case records that some states post, one cannot help but see them as “sick” monsters. one sees a bad picture, a horrific description of a crime, and an address. even if the acts are decades old, there is typically little countervailing information that would help us understand their current circumstances or the extent to which they pose a threat to public safety today.

kai erikson noted in the 1960s that deviant forms of conduct seem to derive nourishment from the very agencies devised to inhibit them. can efforts to inhibit inJustice have similarly perverse unintended consequences? a new paper by harvard law professor william stuntz makes the provocative claim that the vigorous pursuit of constitutional rights is partly to blame for mass incarceration. the abstract:

The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention – and budget dollars – away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else – these familiar political problems are more the consequences of constitutional regulation than justifications for it.

stultz’s basic argument is that constitutional law creates political “taxes” and “subsidies” that make some kinds of crime control cheap and others more costly. for example, the supreme court aggressively regulates policing and trial procedure, but generally leaves the substantive criminal code and sentencing to the politicians — where they go hog wild expanding the number of laws and raising sentence length. he also argues that prison budgets get a “constitutional subsidy” whereas local police and courts must ante up a “constitutional tax.” here’s a taste of the argument:

Earl Warren and his colleagues did little to expand due process and even less to guarantee “the equal protection of the laws.” Instead, they used the Fourth, Fifth, and Sixth Amendments to ratchet up regulation of state and local criminal processes. That choice had three perverse consequences. First, it made the constitutional law of criminal Justice primarily about criminal procedure. Second, it focused the law’s attention on trial procedure, not on the discretionary processes that actually dispose of most cases.196 Third, the Warren Court’s Bill of Rights-based regulation used constitutional law to protect majoritarian values, not countermajoritarian ones (pp. 47-48).

well, then! stuntz makes clear that he is no proponent of business-as-usual mass incarceration, but he makes a fascinating counter-intuitive proposition: could gideon’s trumpet, earl warren, and the aclu have actually increased the levels and inequalities of punishment in the past generation? or is this simply piling on — another game of “pin the blame upon the liberal?” [realizing, of course, that civil libertarians come in conservative flavors as well]. i’m skeptical of stuntz’s claims, but intrigued by the causal chain he hypothesizes.

kai erikson noted in the 1960s that deviant forms of conduct seem to derive nourishment from the very agencies devised to inhibit them. can efforts to inhibit inJustice have similarly perverse unintended consequences? a new paper by harvard law professor william stuntz makes the provocative claim that the vigorous pursuit of constitutional rights is partly to blame for mass incarceration. the abstract:

The politics of crime is widely seen as punitive, racist, and inattentive to the interests of criminal suspects and defendants. Constitutional law is widely seen as a (partial) remedy for those ills. But the cure may be causing the disease. At the margin, constitutional law pushes legislative attention – and budget dollars – away from policing and criminal adjudication and toward punishment. The law also widens the gap between the cost of investigating and prosecuting poor defendants and the cost of pursuing rich ones. Overcriminalization, overpunishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of everything else – these familiar political problems are more the consequences of constitutional regulation than justifications for it.

stultz’s basic argument is that constitutional law creates political “taxes” and “subsidies” that make some kinds of crime control cheap and others more costly. for example, the supreme court aggressively regulates policing and trial procedure, but generally leaves the substantive criminal code and sentencing to the politicians — where they go hog wild expanding the number of laws and raising sentence length. he also argues that prison budgets get a “constitutional subsidy” whereas local police and courts must ante up a “constitutional tax.” here’s a taste of the argument:

Earl Warren and his colleagues did little to expand due process and even less to guarantee “the equal protection of the laws.” Instead, they used the Fourth, Fifth, and Sixth Amendments to ratchet up regulation of state and local criminal processes. That choice had three perverse consequences. First, it made the constitutional law of criminal Justice primarily about criminal procedure. Second, it focused the law’s attention on trial procedure, not on the discretionary processes that actually dispose of most cases.196 Third, the Warren Court’s Bill of Rights-based regulation used constitutional law to protect majoritarian values, not countermajoritarian ones (pp. 47-48).

well, then! stuntz makes clear that he is no proponent of business-as-usual mass incarceration, but he makes a fascinating counter-intuitive proposition: could gideon’s trumpet, earl warren, and the aclu have actually increased the levels and inequalities of punishment in the past generation? or is this simply piling on — another game of “pin the blame upon the liberal?” [realizing, of course, that civil libertarians come in conservative flavors as well]. i’m skeptical of stuntz’s claims, but intrigued by the causal chain he hypothesizes.

The american civil liberties union and talkleft reports on a civil suit that begins today in federal district court. In Johnson v. Wathen, inmate Roderick Johnson seeks damages against texas prison officials, alleging that they ignored his pleas for help and did little to protect him from repeated rape and sexual abuse. According to the ACLU:

Beginning in September 2000, Roderick Johnson was housed at the James A. Allred Unit in Iowa Park, Texas where prison gangs bought and sold him as a sexual slave, raping, abusing, and degrading him nearly every day for 18 months. Johnson filed numerous complaints with prison officials and appeared before the unit’s classification committee seven separate times asking to be transferred to safekeeping, protective custody, or another prison, but each time they refused…Instead of protecting Johnson, the ACLU complaint charges, the committee members taunted him and called him a “dirty tramp,” and one said, “There’s no reason why Black punks can’t fight if they don’t want to fuck.”

The suit alleges denial of equal protection based on race and sexual orientation and that administrators could have protected Johnson without compromising “legitimate correctional needs.” Although the latter issue might seem paradoxical (how could stopping rape compromise security or legitimate penological objectives?), it is a common defense in prisoners’ rights cases. The ACLU shows numerous pages of Johnson’s handwritten complaints to officials, such as:

The extent of sexual abuse and rape in prisons is often debated by criminologists and reliable data on the subject have historically been hard to find. In the past five years, however, prison rape has received increasing attention and documentation, with a 2005 bureau of Justice statistics study, 2001 and 2003 human rights watch reports, and the prison rape elimination act of 2003. A call for accountability from prison officials seems like a basic step, but complaints from inmates such as Johnson have historically been dismissed as self-serving (the prisoner is “working the system”) or exaggerated (“prison is supposed to be hard”) and still fall on deaf ears in some prison systems. The Johnson complaint cites Farmer v. Brennen, a 1994 case in which the U.S. Supreme Court found that “prison officials violate prisoners’ Eighth Amendment right not to be sexually assaulted when, with conscious disregard of a substantial risk that a prisoner will be raped, they fail to take reasonable measures to abate that risk.”

It isn’t just prison officials, either. People who would never joke about rape outside prisons casually laugh off the idea of prison rape (e.g., when a white-collar offender is sentenced). Either they minimize the harm (as was the case with “marital rape” and “date rape” until recently) or they see inmates as “other” — so dehumanized that they do not suffer the way the rest of us would. The stigma of a criminal record is part of the reason for such “deliberate indifference” on the part of officials and the public, but an inmate’s race, gender, and sexual orientation also appear to play a role in the societal reaction to complaints.

The american civil liberties union and talkleft reports on a civil suit that begins today in federal district court. In Johnson v. Wathen, inmate Roderick Johnson seeks damages against texas prison officials, alleging that they ignored his pleas for help and did little to protect him from repeated rape and sexual abuse. According to the ACLU:

Beginning in September 2000, Roderick Johnson was housed at the James A. Allred Unit in Iowa Park, Texas where prison gangs bought and sold him as a sexual slave, raping, abusing, and degrading him nearly every day for 18 months. Johnson filed numerous complaints with prison officials and appeared before the unit’s classification committee seven separate times asking to be transferred to safekeeping, protective custody, or another prison, but each time they refused…Instead of protecting Johnson, the ACLU complaint charges, the committee members taunted him and called him a “dirty tramp,” and one said, “There’s no reason why Black punks can’t fight if they don’t want to fuck.”

The suit alleges denial of equal protection based on race and sexual orientation and that administrators could have protected Johnson without compromising “legitimate correctional needs.” Although the latter issue might seem paradoxical (how could stopping rape compromise security or legitimate penological objectives?), it is a common defense in prisoners’ rights cases. The ACLU shows numerous pages of Johnson’s handwritten complaints to officials, such as:

The extent of sexual abuse and rape in prisons is often debated by criminologists and reliable data on the subject have historically been hard to find. In the past five years, however, prison rape has received increasing attention and documentation, with a 2005 bureau of Justice statistics study, 2001 and 2003 human rights watch reports, and the prison rape elimination act of 2003. A call for accountability from prison officials seems like a basic step, but complaints from inmates such as Johnson have historically been dismissed as self-serving (the prisoner is “working the system”) or exaggerated (“prison is supposed to be hard”) and still fall on deaf ears in some prison systems. The Johnson complaint cites Farmer v. Brennen, a 1994 case in which the U.S. Supreme Court found that “prison officials violate prisoners’ Eighth Amendment right not to be sexually assaulted when, with conscious disregard of a substantial risk that a prisoner will be raped, they fail to take reasonable measures to abate that risk.”

It isn’t just prison officials, either. People who would never joke about rape outside prisons casually laugh off the idea of prison rape (e.g., when a white-collar offender is sentenced). Either they minimize the harm (as was the case with “marital rape” and “date rape” until recently) or they see inmates as “other” — so dehumanized that they do not suffer the way the rest of us would. The stigma of a criminal record is part of the reason for such “deliberate indifference” on the part of officials and the public, but an inmate’s race, gender, and sexual orientation also appear to play a role in the societal reaction to complaints.