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March 24, 2016

Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?

The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments.  Here are details on how Utah is engaged in an alternative sanctions experiment:

States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime.  An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.

They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.

The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”

The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.

Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.

The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.

Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....

Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.

Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”

Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”

The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.

Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.

The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.

State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”

March 24, 2016 at 10:22 AM | Permalink

Comments

First they came for the sex offenders.

Doug, I don't disagree with you that alternatives to incarceration are a good thing, but if the white collar registry, meth registries, kidnapping registries, etc., are patterned after the sex offender registry then I think it's a mistake to think of it as an alternative to punishment. They are supplements to punishment. Indeed, courts don't regard registries as punishment at all despite the fact that the public generally views registration as an affirmative punishment.

Furthermore, if the results from expanded registries are anything like what has been seen with SORNA laws, then this will accomplish nothing aside from creating yet another class of "untouchables." Research shows that SORNA has no demonstrable effect on reducing sex offenses, so why should the expectation be any different for registries of different flavors?

I don't think you're crazy, but respectfully, misguided on this point.

Posted by: Guy | Mar 24, 2016 11:30:40 AM

I think it's possible that it is a good thing that people who are guilty of financial crimes -- at least for a time -- should be on a list so people who might do business with them etc. are aware that they are bad risks.

But, having them on a list 10 years later for all to see is a somewhat harsh alternative. I think we as a society need to do a lot better on dealing with criminals than putting them in cages, killing them and the lesser punishments. So, alternatives are good, and at times shaming should factor in somehow. But, THIS isn't that helpful in the long run there.

Posted by: Joe | Mar 24, 2016 11:51:29 AM

Joe, I assume that you are aware that any criminal background check, common if not ubiquitous among employers, would reveal that the person in question has been convicted of a financial crime.

Registries are just a bad idea, period.

Posted by: Fat Bastard | Mar 24, 2016 12:00:35 PM

Given that criminal conviction is a public act I don't understand why we don't simply track all convicts. This should be information that the STATE PUBLISHES AS PART OF ROUTINE OPERATIONS REGARDLESS OF OFFENSE TYPE, IT SHOULD NOT REQUIRE GOING TO COUNTY COURTHOUSES TO COLLECT PHYSICAL RECORDS FROM RELUCTANT CUSTODIANS.

Posted by: Soronel Haetir | Mar 24, 2016 1:01:59 PM

Yes, you are crazy. There is nothing to like about any type of registry. The more you mark people the more you undermine any notion of rehabilitation and you undermine public safety. The average person commits three felonies a day, or so the saying goes, not all of them are prosecuted, public registries fuel unfairness; they increase unemployment/recidivism. Stop with this stuff; they don't do this in the UK or Canada and guess what, there is no wave of frauds and there is a much lower rate of recidivism. Just stop with the registries.

Posted by: Old Lawyer | Mar 24, 2016 3:22:01 PM

A conviction prospectively ruins an offender's life for past conduct. Most of the time, a conviction already comes up on Google. Now you support registration for white collar offenders? Why not have them put a sign in the yard? How about a tattoo? Let me guess, its to protect the public? And its not really punishment right? Sure. Tell that to the guys who 10 or 20 years later still cant get a job with the DOJ breathing down their throat that they still haven't paid the restitution. And why can't they pay their restitution? No job! Yay, a wonderful virtuous cycle.

You know we could also castrate white collar offenders in case they try to get laid and spawn future off spring.

Posted by: Retired Attorney | Mar 24, 2016 3:26:57 PM

"common if not ubiquitous among employers"

what about other people? The general public would repeatedly have reason to associate with these people in a professional sort of way.

Maybe track chips for all. If I write it in caps, maybe?

Posted by: Joe | Mar 24, 2016 4:06:28 PM

Anyone watch the movie Brazil? Its an Orwellian drama were the police is constantly trying to catch terrorists. Or how about the movie Minority Report? There is one part of life that we all have to accept: crime. Some times people will commit crimes. No, you cannot be 100% secure all the time. Yes, the margin of error has to be significant for some types of crime, white collar being one of them, compared to others (murder, rape). If you tag, track, and ruin lives as retribution, you are going to reap what you sow and its not public protection.

Everyone talks about "mass incarceration." There is another problem: mass arrests and convictions. The number of new felony conviction in the US is growing at a faster rate than population growth. At some point there will be more people with a felony record than without a felony record. Add to this registration for growing number of offenses and what are you left with?

Posted by: Retired Attorney | Mar 24, 2016 4:28:28 PM

Count me in with the "Yes, you are crazy" crowd. (Though to be honest, as a psychologist I dislike the word "crazy").

Posted by: Daniel | Mar 24, 2016 6:59:40 PM

In my opinion it's most objective to have a registry for when a person is sentenced to more than a certain number of years in prison. The type of offense should not matter. You can have less serious frauds, and more serious frauds. Yes you can have less serious sex offenses (groping?) and more serious sex offenses. It is not OK to classify anyone guilty of offenses in a broad category as permanently bad on a whim.

Of course I doubt this will happen because it seems that the forces giving rise to these registries in the first place are not principled forces-they're driven by panic or media hullabaloos. Or at least that is my impression. I would really like to learn more about why they exist but I don't know where to start. Does anyone want to recommend a source?

Posted by: random | Mar 25, 2016 8:27:59 AM

BTW I think a lot of commenters here are missing a point. Yes you can say, I hate registries, let's get rid of them but obviously in practice that's pretty hard. For whatever reason, the public wants punishment. Maybe it's easier to make registries fairer than to get rid of them outright and if so then that's nothing to sniff at.

Posted by: random | Mar 25, 2016 8:33:30 AM

@random

The problem with that logic is it becomes a self-fulfilling prophecy. It doesn't take much to go from an implicit acceptance of something (but let's make it fairer!) to explicit support. It's not like a virus. It makes sense to treat the symptoms of a cold because, thanks to one's immune system, a cold is self-limiting. Registries are not self-limiting. The more one concedes to them the more they will become ingrown. Then pretty soon they will become a tradition. Then good luck ever ending them.

Posted by: Daniel | Mar 25, 2016 1:16:16 PM

It probably depends on who you are. For a random person who will only send a check to some organization because they don't have the ability to worry about details, or any ability to contact the right people to get those details made into a law, you might be right. So I guess for us average joes it makes sense to just say, "Registries bad!" On the other hand for elites (e.g. a law professor) they might want to worry about details.

Posted by: random | Mar 25, 2016 2:41:20 PM

Doug:

In response to the original question:

Yes, you are really crazy to "like a white collar crime registry"!!!!

Tell me, who qualifies. If you say the local cash register attendant who accidentally short changed you, you have the makings of the SO registry, where failure to properly register (at the intentional pitfalls of LE and lawmakers) is a minefield for more severe punishments than 10X the original crime.

And, you can't live within 1000 feet of a bank or financial institution.

PS: The way my investments are going mostly because of the stupidity of said lawmakers, they (lawmakers) and my financial advisors should all be registered.

To say that these are NOT punishments is to make everyone 10 times stupider!

Posted by: albeed | Mar 26, 2016 5:47:03 PM

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