Sex offender registries have long been an American commonplace, but on Wednesday the Utah legislature made history with the creation of the nation’s first white-collar crime registry. The state has long had high rates of consumer fraud, which lawmakers believe is a function of the uniquely trusting nature of Mormons. Publicly shaming scammers would prevent such crime, the theory goes, and consumers could at last know whom to avoid.
It's a tempting approach. If sex offenders must report themselves and be monitored, why shouldn’t financial criminals? They ruin lives, too, and often on a broader scale. Those who con the elderly out of their life savings have it coming, do they not?
In short: no. Tempting as the registry may sound, it only further expands the indefensible harshness of American “scarlet letter” punishment methods. Furthermore, the crime registry is almost certain to miss its target, leaving real financial criminals untarnished while acting mercilessly toward comparatively minor offenders. The accountability benefits will be few, the costs to liberty potentially enormous.
Sex offender registries themselves have been a policymaking disaster, a perfect example of lawmaking based on public emotion and political grandstanding rather than real-world data. There is very little evidence that registries reduce sex crimes. In fact, there’s evidence they may actually make crimes more likely by pushing offenders to the margins of society and raising the costs of living a lawful existence. Registries make the process of rehabilitation and reacceptance impossible by ensuring that no matter how much a person tries to better himself, he will remain a pariah.
But the real problem with public registries is that they’re inhumane, turning every crime into a life sentence. In branding people with a permanent public mark of shame, registries punish the convicted long after they have served their time. Sex-offender registries have resulted in long-reformed senior citizens being unable to use public parks, and in geographic living restrictions so exclusionary that they produce little colonies of sex offenders huddling under bridges. Registries should therefore be a cautionary tale in what happens when blind fear and hatred drives policy, not a model to be emulated for other crimes.
Yet even for those who find public shaming just and wise, and do not find registries faintly Orwellian, there is reason to believe Utah’s database will fail. Listing individual white collar criminals doesn’t give the public much useful information. Many such criminals are simply rich people who have stolen from other rich people, or at the other end, relatively insignificant individual actors who pose a minimal ongoing general threat.
Another problem is that most white collar crime is completely legal. Wall Street bankers avoided jail during the financial crisis not just because of the SEC's failures, but because most had committed no crimes. So many of today’s predatory financial practices are simply the way America does business. There’s not a trace of unlawfulness in the usurious student loans that sell every college graduate into lifelong indenture. Foreclosing on single mothers so that they have to live in their car is a perfectly permissible exercise of a contractual right. Every day, millions of people are sucked dry by debt collectors, landlords, payday lenders, and rent-to-own plans, and the law remains silent
Utah's registry therefore won’t prevent the greatest harms. For the gentle, credulous Mormons, it may help them avoid a Nigerian bank scam, but it won’t tell them that the debt settlement company is trying to perpetrate an even costlier swindle. (And it's doubtful that anyone from Bank of America and JP Morgan Chase, which entered billion-dollar settlements over their massive financial crisis-related mortgage malfeasance, will appear on Utah's registry.)
There is one defensible rationale for a white collar crime registry: that it attempts to equalize punishment for crimes committed by the poor and crimes committed by the rich. Utah Gov. Gary Herbert justified the measure with an appeal to egalitarianism, saying, “It doesn’t matter what color collar a criminal wears.” But if a law is both unjust and unequally applied, the focus should not be on making sure everyone suffers the injustice equally, but that nobody suffers it at all.