an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It is safe to assume that in 2020, like today, a significant majority of the nation’s convicts will be subject to community supervision of some kind, not prison or jail. If the recent past serves as a guide, the correctional regime that they experience will be heavily information-based.
Convict information, assembled and disseminated to communities, played a linchpin role in what was arguably the defining social control innovation of the late twentieth century, sex offender registration and community notification (RCN) laws. The laws, now in effect nationwide and sweeping up roughly 700,000 individuals, utilize two distinct yet complementary information-based strategies. With registration, targeted individuals must provide identifying information to governments in the hope of instilling a surveillance effect (hence deterring recidivist misconduct) and enabling police to investigate reported sexual offenses. With community notification, this information is spread among communities, in the hope of empowering families and individuals with information to take self-protective measures against sexual abuse and to help police monitor registrants. RCN has enjoyed remarkable political success. Over the course of a single decade, the 1990s, laws were enacted nationwide, often without meaningful debate and by unanimous or near-unanimous votes. To be sure, pressure from Congress, which threatened to withhold federal funds from states if they did not enact RCN laws, served as a significant catalyst. So did a spike in concern over child sexual abuse, especially when committed by strangers. The shaming quality of RCN, which singles out particular offenders with epithets like “predator,” potentially for their lifetimes, also reflected (and fed) the nation’s harshly punitive zeitgeist as the century waned.
There is no mistaking, however, that the great appeal of RCN can be explained by yet another, far more potent force: a sense of information entitlement. Community members, outraged over child sexual victimizations and the refusal of governments to provide identifying information on perpetrators, demanded access to such information. They did so based on the view that they were morally entitled to it, to protect loved ones, and that the public safety failure of government made its provision a practical necessity.
The data collected—such as home and work addresses, conviction histories, and vehicle descriptions—are of course “public” in the strictest sense. Yet their dissemination, in aggregate form, has marked the emergence of an important new public safety model, consisting of three components.
The first component involves registrants themselves, who under pain of threatened punishment must provide information to government authorities, making them complicit in their own surveillance. The second component involves Individual community members. Unlike in the past, when they were expected to be passive beneficiaries of public safety efforts, today individuals are expected to be active consumers and users of convict information, making them principally responsible for their own safety. Finally, government still plays a public safety role but its role has been significantly transformed. While still expected to arrest and imprison recidivists, it has become an information broker.
Until such time as RCN adversely affects the politically empowered, its indulgence will remain, as Cass Sunstein observed relative to indulging fear-based legislation more generally, “costless.” Despite continued uncertainty over its public safety benefits, RCN continues to enjoy strong public support; communities, as advocates of RCN insist, have a “right to know.” And while it is possible that ever-harsher incarnations of RCN might result in reassessment of their constitutionality, on the margin, the firm backing of the U.S. Supreme Court makes it unlikely that the judiciary will intercede and curb the use of information as a social control strategy in a fundamental way.
As the current popularity of techniques such as GPS technology attests, information will very likely continue to figure centrally in social control efforts in coming years, affording community members a measure of psychic (if not actual) safety. In due course, as RCN itself has demonstrated, the net of social control will thus experience expansion, sweeping up ever broader swaths of offenders (not just those convicted of sex crimes) and presenting new challenges to liberal democracy.
Wayne Logan is Pajcic Professor of Law and Associate Dean for Academic Affairs at Florida State University College of Law. You can reach him be e-mail at wlogan at law.fsu.edu. Posted
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