This piece’s co-author is Radhika Bhat.
A young man in upstate New York drinks too much and gets a little rowdy, picks a fight, smashes up the bar, and is arrested. When he gets into trouble again a short time later, the judge sends him to jail for a week. After his release, he gets fired and cannot find a new job because he has a record. The local newspaper carries a story about his misconduct. The merchants on Main Street refuse to sell him anything on credit. The young women gossip about him and refuse to date him. One day he has had enough. He packs his meager belongings, leaves without a good-bye, and moves to a small town in Oregon. Here, he gains a new start. Nobody knows about his rowdy past, and he has learned his lesson. He drinks less, avoids fights, works in a lumberyard, and soon marries a nice local woman, has three kids, and lives happily ever after. Cue the choir of angels singing in the background.
The idea that people deserve a second chance is an important American value. Perhaps it grows out of our history, in which those who got into trouble in Europe (whether it was their fault or not) moved to the United States to start a new life. And as the American West was settled, many easterners and midwesterners found a place there for a second beginning. More profoundly, the belief in a new beginning is a tenet of Christianity, which allows sinners to repent and be fully redeemed, to be reborn. In a similar vein, the secular, progressive, optimistic, therapeutic culture of today’s America rejects the notion that there are inherently bad people. As individuals, we seek insights into our failings so we can learn to overcome them and achieve a new start. From a sociological perspective, people are thrown off course by their social conditions—because they are poor, for instance, and subject to discrimination. But these conditions can be altered, and then these people will be able to lead good lives. Under the right conditions, criminals can pay their debt to society and be rehabilitated, sex offenders can be reformed, and others who have flunked out can pass another test. Just give them a second chance.
The latest chapter of this deeply entrenched narrative introduces a big bad wolf, the Internet. It stands charged with killing the opportunity for people to have that much-deserved second chance. By computerizing local public records, the Internet casts the shadow of people’s past far and fast; like a curse they cannot undo, their records now follow them wherever they go. True, even in the good old days, arrest records, criminal sentences, bankruptcy filings, and even divorce records were public. Some were listed in blotters kept in police stations, others in courthouses; anyone who wished to take the trouble could go there and read them. But most people did not. Above all, there was no way for people in distant communities to find these damning facts without going to inordinate lengths.
The first sign of trouble due to technological changes came about in the late 19th century when newspapers started publishing this sort of information. In 1890, after newspapers printed social gossip about the family of Boston lawyer Samuel D. Warren, he and his law partner, the future Supreme Court Justice Louis D. Brandeis, published in the Harvard Law Review what is considered the most seminal law review article ever written, one that became the foundation of the American right to privacy. In it, they asserted that an individual has the right to keep certain information hidden from others. Warren and Brandeis were not trying to stop gossip. (Although people often find gossip annoying, sociologists view it as an important part of the informal social controls that nudge people to be better than they would otherwise be, thus minimizing the role for policing. Hence the great concern with the breakdown of communities—where people know each other and gossip—and the quest for new soft tools to advance social order.) But Warren and Brandeis correctly saw that a major change takes place once gossip is spread to a large community, as it is via the print media, to people who do not personally know those who are being gossiped about, and who are therefore unaware of the special circumstances, of the “whole story.” This change was a harbinger of things to come.
In recent decades, online databases have dramatically increased the size of the audience that has access to public information and the ease with which it can be examined. Several companies have started compiling criminal records, making them available to everyone in the country and indeed the world. For instance, PeopleFinders, a company based in Sacramento, recently introduced CriminalSearches.com, a free service to access public criminal records, which draws data from local courthouses. A similar thing is happening to many other types of public records, ranging from birth records to divorces.
These developments disturb privacy advocates and anyone who is keen on ensuring that people have the opportunity for a new start. Beth Givens, director of the Privacy Rights Clearinghouse, says that Internet databases cause a “loss of ‘social forgiveness.’” For instance, a person’s “conviction of graffiti vandalism at age 19 will still be there at age 29 when [he’s] a solid citizen trying to get a job and raise a family”—and the conviction will be there for anyone to see. Furthermore, as companies “rely on background checks to screen workers, [they] risk imposing unfair barriers to rehabilitated criminals,” wrote reporters Ann Zimmerman and Kortney Stringer in The Wall Street Journal. In short, as journalist Brad Stone wrote in The New York Times, by allowing the producers of databases to remove “the obstacles to getting criminal information,” we are losing “a valuable, ignorance-fueled civil peace.”
But hold on for just a minute. Is the Internet age really destroying second chances, making us less forgiving and hindering the possibility for rehabilitation and even redemption? The sad fact is that most convicted criminals in the pre-digital age did not use the second chance that their obscurity gave them, nor did they use their third or fourth chances. Convincing data show that most criminal offenders—especially those involved in violent crimes—are not rehabilitated; they commit new crimes. And many commit numerous crimes before they are caught again. Thus, while obscurity may well help a small percentage of criminals get a second chance, it helps a large percentage of them strike again.
Take the case of James Webb (not the U.S. Senator from Virginia of the same name). He had served 20 years in prison for raping six women when, on August 16, 1995, he was released on parole. But rather than look for a new start, he raped another woman the day after he was released. Then he raped three more women in the next few months. He was re-arrested in December 1995, after he committed the fourth rape. Or consider the case of James Richardson, a New York resident who served 20 years of a life term for raping and murdering a 10-year-old girl. After he was paroled in 1992, he committed three bank robberies before being re-incarcerated. Both cases happened before the advent of databanks of criminal convictions.
These two are typical cases. In its most recent study on recidivism in the United States, the Justice Department’s Bureau of Justice Statistics tracked two-thirds of the prisoners released in 15 states in 1994. It found that within three years of their release, 67.5 percent of them were re-arrested for a new offense. In short, most people who commit crimes are more likely to commit crimes in the future than to make good use of a second chance. This was true long before the digitization of criminal data and the loss of obscurity.
Moreover, just because only two-thirds of the prisoners were re-arrested does not mean that the other third did not commit any crimes. Many crimes are never solved and their perpetrators never caught. Studies found that the majority of rapists and child molesters had been convicted more than once for a sexual assault—and committed numerous offenses before they were caught again. On average, these offenders admitted to having committed two to five times as many sex crimes as were officially documented. That is, not only did they fail to use their second chances to start a new life, they used obscurity to their advantage.
In short, the image of a young person who goes astray, and who would return to the straight and narrow life if just given a second chance, does not fit most offenders. Indeed, prisons are considered colleges for crime; they harden those sentenced to spend time in them, making them more disposed to future criminal behavior upon release. Social scientists differ about whom to blame for the limited success of rehabilitation. Some fault “the system,” or poor social conditions, or lack of job training. Others place more blame on the character of those involved. In any case, obscurity hardly serves to overcome strong factors that agitate against rehabilitation.
Online databases also display the records of physicians who do not live up to the Hippocratic oath; these doctors do harm, and plenty of it. The National Practitioner Data Bank allows state licensing boards, hospitals, and other health-care entities to find out whether the license of a doctor has been revoked recently in another state or if the doctor has been disciplined. Doctors’ licenses are generally revoked only if they commit very serious offenses, such as repeated gross negligence, criminal felonies, or practicing while under the influence of drugs or alcohol.
If these databases had been used as intended in the late 1990s and early 2000s, they could have tracked Pamela L. Johnson, a physician who was forced to leave Duke University Medical Center after many of her patients suffered from unusual complications. In response, Johnson moved to New Mexico and lied about her professional history in order to obtain a medical license there and continue practicing. After three patients in New Mexico filed lawsuits alleging that she was negligent or had botched surgical procedures, she moved again and set up shop in Michigan.
Similarly, Joseph S. Hayes, a medical doctor licensed in Tennessee, was convicted of drug abuse and assault, including choking a patient, actions which resulted in the revocation of his Tennessee license in 1991. But his license was reinstated in 1993. When he was charged with fondling a female patient in 1999, he simply moved to South Carolina to continue practicing medicine. Similar stories could be told about scores of other doctors. (The exploits of one of the most notorious of these doctors are laid out in a new book, Charlatan, by Pope Brock.)
Beyond assuming that Internet databases do little harm to those who are not likely to reform themselves, we can show real benefits from the widespread dissemination of information about wrongdoers—-for their potential victims. Few doctors are hired by hospitals these days without first being checked through the digitized data sources. Before you hire an accountant, such data makes it possible to discover whether he or she has a record of embezzlement. A community can find out if a new school nurse is a sex offender. Employers may direct ex-offenders to other jobs, or they may still hire them but provide extra oversight, or just decide that they are willing to take the risk. But they do so well informed—and thus warned—rather than ignorant of the sad facts.
Registration and notification laws for sex offenders provide a good case in point. The Washington State Institute for Public Policy conducted a study in 2005 that evaluated the effectiveness of the state’s community notification laws. In 1990, Washington passed the Community Protection Act, a law that requires sex offenders to register with their county sheriff and authorizes law enforcement to release information to the public. The study found that by 1999 the recidivism rate among felony sex offenders in the state had dropped 70 percent from the pre-1990 level, in part due to communities’ awareness of the sex offenders in their neighborhoods. In addition, offenders subject to community notification were arrested for new crimes much more quickly than offenders who were released without notification.
True, online databases increase the size of the community that has access to information, but these technological developments merely help communities catch up with other social developments. People do business over greater distances and move around much more, and much farther, than they did in earlier eras. Our travel and transactions are no longer limited to the county store and local diner. Our access to data needs to expand to match the new scope of our lives.
All of this is not to deny that we face a moral dilemma. Although most offenders are not rehabilitated, some are. It is incorrect to assume that “once a criminal, always a criminal.” Take the case of Mike Kolomichuk, who in 1979 pleaded guilty to two counts of battery after having an altercation with an undercover police officer in a bar in Florida. As punishment, he received unsupervised probation, during which he conducted himself well. Kolomichuk eventually moved to Ohio, where almost 30 years later he ran as a write-in candidate for mayor of the village of Lakemore and won. His criminal past was not an issue in the election because his record was unknown in the village of 2,500 people. When his criminal history came out a few months later, there was talk of the need for a new election, but it soon subsided. Today, Kolomichuk remains mayor and is continuing his efforts to revitalize the community. In this case, obscurity may well have helped.
The argument can be made, then, that just as we believe it is better to let a hundred guilty people walk free than to condemn one innocent person, we should let a hundred criminals benefit from obscurity in order to provide a chance at rehabilitation for the few who put obscurity to good use. But there are ways, although imperfect, for allowing second chances for offenders while still allowing a community to protect itself by using online databases.
What is needed is a mixture of technological and legal means to replace the measures that were once naturally woven into the fabric of communities with measures that can satisfy the needs of a large, complex, and mobile society.
For example, where the inefficiency of paper records once ensured that information would not travel far, we now must introduce into the digitized world barriers for information that should not be spread. Formerly, in smaller communities, if a person was arrested, his neighbors would learn whether he had been exonerated or convicted. The community might even have had a sense of whether a person who was released had in fact committed the crime, or whether the arrest was unjustified. These days, an arrest record may travel across the globe in nanoseconds, but it is difficult to find out if it was justified. Either arrest records should not be made public (although they might be available to police in other jurisdictions) or they must be accompanied with information about the outcome of the case.
In addition, a criminal record could be sealed both locally and in online databases, say after seven years, if the person has not committed a new crime. There is considerable precedent for such a move. For instance, information about juvenile offenders and presentations to grand juries are often sealed.
Another measure could limit access to certain databanks to those who are trained to understand the limitations of these databanks. For instance, several states allow only police authorities and educational institutions to access databases on sex offenders.
One other major concern is that lawbreakers who have paid their debt to society will face discrimination in hiring and housing. Protections against such discrimination are already in place, but others might be added. For instance, employers cannot, as a general rule, legally maintain a policy of refusing to hire people merely because they are ex-cons, whether the employer gets this information from a police blotter or a computer.
Internet databases should be held accountable for the information they provide. If they rely on public records, then they should be required to keep up with the changes in these records. They should also provide mechanisms for filing complaints if the online data are erroneous, and they should make proper corrections in a timely fashion, the way those who keep tabs on credit records are expected to do.
These are a few examples of measures that provide obscurity equivalents in the digital age. Still, let’s remember the importance of gossip fueled by public records. As a rule, we care deeply about the approval of others. In most communities, being arrested is a source of major humiliation, and people will go to great pains to avoid ending up in jail. In such cases, the social system does not work if the information is not publicly available. This holds true for the digitized world, where the need for a much wider-ranging “informal social communication,” as sociologists call gossip, applies not merely to criminals, sexual predators, and disgraced physicians. It holds for people who trade on eBay, sell used books on Amazon, or distribute loans from e-banks. These people are also eager to maintain their reputation—not just locally but globally. If we cannot find ways to deal in cyberspace with those who deceive and cheat, then our ability to use the internet for travel, trade, investment, and much else will be severely set back.
This need is served in part by user-generated feedback and ratings, which inform others who may do business via the Internet—much like traditional community gossip would. The ability of people to obscure their past in pre-Internet days made it all too easy for charlatans, quacks, and criminal offenders to hurt more people by simply switching locations. The new, digitized transparency is one major means of facilitating deals between people who do not know each other. With enough effort, its undesirable side effects can be curbed, and people can still gain a second chance.
This article was co-authored by Radhika Bhat, a research and outreach assistant at the Institute for Communitarian Policy Studies at The George Washington University.
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