Knowledge as Power: Criminal Registration and Community Notification Laws in America (Critical Perspectives on Crime and Law) - Softcover

Logan, Wayne A.

Softcover

ISBN 10: 0804761361 ISBN 13: 9780804761369

Verlag: Stanford Law Books, 2009

Inhaltsangabe

The first comprehensive examination of U.S. efforts to register and monitor individuals in response to real or perceived criminal threats.

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Über die Autorin bzw. den Autor

Wayne A. Logan is Gary & Sallyn Pajcic Professor of Law and Associate Dean for Academic Affairs at Florida State University. In addition to being the nation's preeminent legal scholar on registration and community notification laws, he is a prolific author and commentator on a broad array of other criminal justice-related issues.

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Knowledge as Power

CRIMINAL REGISTRATION AND COMMUNITY NOTIFICATION LAWS IN AMERICABy Wayne A. Logan

Stanford Law Books

Copyright © 2009 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-6136-9

Contents

Acknowledgments......................................ixIntroduction.........................................xi1 Historical Antecedents.............................12 Early Laws: 1930-1990..............................203 Modern Laws: 1990-Today............................494 Social and Political Catalysts.....................855 Effects and Consequences...........................1096 Law, Privacy, and Governance.......................1347 Prospects for the Future...........................165Conclusion...........................................185Notes................................................189Index................................................287

Chapter One

HISTORICAL ANTECEDENTS

MODERN-DAY CRIMINAL REGISTRATION and community notification laws owe an unmistakable intellectual and technological debt to predecessor efforts. As governments and individuals over time recognized the reality of individualized criminal risk, techniques were devised to render it more knowable, and hence possibly more susceptible to control. This chapter traces the several major developments that laid the foundation for contemporary registration and community notification laws, providing the necessary background for an understanding of the forces propelling their modern proliferation in America.

MEASURING MISCONDUCT

Governments have long valued gathering and storing information on their subjects. Dating back to efforts by ecclesiastics in mid-1500s Finland and Sweden, and later public authorities in seventeenth-century England and Prussia, governments have recognized the importance of population data. By recording events such as births, deaths, and marriages, a "legible people" could be created, and this legibility served the important instrumental purpose of evincing state power itself.

Over time, however, statistical knowledge came to be valued for more particularized reasons, including its capacity to reflect the incidence of criminal deviance, an issue of increasing governmental concern. With improvements in data collection methods, statistical inferences were possible, allowing, as Belgian statistician Adolphe Quetlet put it in 1829, knowledge of the "terrifying exactitude with which crimes reproduce themselves." Governments could "know in advance how many individuals will dirty their hands with the blood of others, how many will be forgers, how many prisoners, nearly as well as one can enumerate in advance the births and deaths that must take place." With such information, one could develop a "kind of budget for the scaffold, the galley and the prisons."

Criminal deviance, nascent social science instructed, was not random. Rather, just as the aggregate occurrence of crime was a social fact, so too was the propensity of certain individuals to repeatedly engage in criminal misconduct. This recognition fueled efforts to amass and maintain records on individual wrongdoers. As early as the late thirteenth century, local governments exchanged names and primitive physical descriptions of wanted outlaws, and over the years such efforts became increasingly routinized. In England, London's court at Bow Street in 1753 initiated a registry containing names and descriptions of all persons suspected of having committed fraud or a felony. In 1844, the French ascribed semantic distinction to the phenomenon, coining the term recidiviste, which itself coincided with a change in governmental perspective. European governments shifted from a preoccupation over dangerous classes to concern over dangerous individuals. Criminal danger, as historian John Pratt has written, became "a quality no longer ... possessed by a class but [rather] by individuals or small groups of criminals." The danger no longer threatened to "tear down the portals of the state in an orgy of blood and destruction," but was instead "targeted at the quality of life of its individual subjects."

PROCESSING THE CRIMINAL ELEMENT

Developing awareness of the individualized nature of criminality had a critically important impact on the administration of justice, which during the late eighteenth and early nineteenth centuries increasingly sought to individualize sanctions. This was especially so in the early American Republic, where two policies, both contingent on the ability to distinguish individual criminal actors, were taking hold. The first was sentence enhancements, which Americans since colonial times imposed on repeat offenders. If such individuals were to be held accountable and singled out for heightened punishment, they had to be reliably identified.

A second policy concerned the goal of offender rehabilitation, which in Jacksonian America emerged as the dominant penal goal and rationale. Under the model, not all convicts were seen as similarly predisposed to recidivism. If prison was to avoid serving as a "school for crime," prior offenders needed to be identified and isolated from perhaps less crime-prone peers. In addition, for reform to be successful, punishments needed to be tailored to the offending histories and backgrounds of individual offenders, which presupposed accurate identification.

Procedures employed in the early 1800s at Philadelphia's Walnut Street Jail highlighted this effort. Upon arrival, officials collected information on each inmate, including name, age, crime of conviction, sentence imposed and date, and adjudicating court. This information was then used to classify individuals in the name of optimizing prospects for rehabilitation, and was augmented by physical descriptions at their time of departure. As a result, future newcomers to Walnut Street could be compared against institutional records, and in the event of a match punishment and reform-related decisions could be made accordingly. Under this regime, "neither change of name or [sic] disguise" would allow reoffenders to escape detection.

Such efforts at individuation, however, were often less than successful. This was so for two chief reasons. First, clerks failed to consistently and comprehensively record available data on convicts (for example, one clerk might note the height of a convict, while another would not). Furthermore, the data points recorded often included vague or relative assessments or descriptors (such as "quick" speech, "sallow" complexion) and focused on too few unalterable features (such as eye color); worse yet, records reflected matters capable of fabrication (such as place or date of birth).

Second, almost as important, the information gathered was not capable of being readily retrieved. Records were typically stored according to sentencing date, with no capacity for cross-referencing, requiring officials to review the entirety of jail records. Although by the mid-1820s the information gathered increased in complexity, and utility was enhanced by storing convict names by means of alphabetization, jail records remained of limited practical use in detecting recidivists.

MONITORING THE CRIMINAL ELEMENT

Concern over recidivists, however, was not limited to government actors; it surely extended to society at large, which in the late eighteenth and early nineteenth centuries was buffeted by broader destabilizing influences. American society in particular experienced massive social and economic change, prompted by rapid industrialization and increases in mobility, urbanization, population growth, and immigration. No longer did neighbors necessarily know one another; America became, in the words of historian Michael Ignatieff, a "society of strangers." In 1829, Alexis de Tocqueville, visiting the country under the auspices of the French government to study American penal reforms, observed that in America "[n]othing is easier than to pass from one state to another, and it is in the criminal's interest to do so."

Available methods of identifying potential criminal offenders, however, provided only modest basis to assuage public anxiety. While in the past offenders could be identified because they had been branded or mutilated, by the early 1800s disfigurement had passed from social acceptability and a new means of identifying at-large criminally risky individuals was needed.

The job of filling this need fell to an emerging institutional entity: the police, which by the mid-1800s had become better organized and more professional and had assumed a more proactive role in public safety. During the time, as Peter Becker observed, "stigma was no longer directly inscribed on the body of the perpetrator, but rather was administered in collections of data by the police." With this information, police could single out risky individuals for monitoring and possible intervention, and in the event a crime was committed, more effectively secure their custody.

Effective identification methods, however, were slow in coming. In Europe, police had used standardized forms to identify suspected perpetrators since the early 1700s, and Prussian police were required to do so by decree in 1828.23 U.S. police, for the first time assigned to specific geographic zones or "beats" in cities, were encouraged and trained to recall the faces and body types of dangerous individuals prone to be in their areas. Officers also adopted the technique of "spotting," whereby they would record suspects' features in their diaries, for subsequent possible identification.

Police soon took advantage of emerging photographic technology, which was more objective and reliable than human memory and descriptions. Initially used by British and French authorities in the 1840s to record images of prisoners and criminal suspects, the New York City Police Department in 1858 staged the first-known police station "rogues' gallery," containing images of 450 arrestees. While initially the galleries solely focused on local offenders, in time duplicate images from other cities were arrayed, and the public was invited to view the displays. Despite being an improvement over prose descriptions, the images suffered from an age-old shortcoming: they could not be assembled in such a way as to ensure their ready retrieval. In addition, the utility of the identification technology was significantly undercut by the protean nature of individuals' physical appearances, which could change either as a result of time and circumstance or overt efforts to deceive.

Meanwhile, European governments were experimenting with more systematic methods. In 1850, the French instituted casiers judiciares, the brainchild of penal reformer Arnould Bonneville de Marsangy, which revolutionized criminal record keeping in France and later much of the Continent. Instead of storing convict records solely in courts where convictions took place, Bonneville's strategy required that a copy of each conviction and sentence be sent to the court in the district of the offender's place of birth, or if such place was not known or the offender was foreign born, to a central repository in Paris. With such information consolidated, a "criminal register" could hold repeat offenders to proper account, and first-time offenders could benefit from lenience. In a speech to the Prison Association of New York in 1868, Bonneville noted that Italy and Portugal had begun using registers and predicted the bright future that lay ahead with further adoptions:

[T]here will be no more frontiers for the administration of justice. Every country regarding it as a duty to transmit to foreign governments the certificates of conviction of those born on their soil, no criminal, however nomadic his life, will be able, on returning to his own country, to shield himself under a false assumption of virtue ... All his antecedents will be revealed; and then, at length, like the Divine justice of which it is the reflection, human justice will, thanks to the registers, have its eyes everywhere.

Bonneville added that the "many signal services" afforded by registries in France would yield "incomparably more" in the United States, which he described as

a vast confederation, composed of a large number of different States, all having their own proper autonomy, their legislatures, their administrative and judicial authority, and only connected together, with a view to their general and political interests, by the guarantee of a compact of national union. In a country so constituted, in the midst of the perpetual movement of mutual immigration caused by the necessities of commerce and industry, in the midst of this incessant coming and going, incapable of exact measurement among the inhabitants of so vast a territory, different for the most part in origin, race, language and habits.

Registries, Bonneville urged, would allow a judge to know the "moral character and antecedents of a criminal, who has pursued his adventurous career successively in the different States of the confederation" and determine the "exact measure of punishment necessary to his reformation."

Yet Bonneville touted the French registration system for more than its adjudication and punishment benefits-the system could actually prevent crime, in two ways. First, he posited, individuals with a prior conviction would be less likely to recidivate because they would be aware that the courts had access to their entire criminal history, permitting enhanced punishment. Second, situating a centralized criminal registry in an offender's place of birth would serve to deter crime in the first instance. Criminal history information, Bonneville wrote in 1870, "instead of remaining hidden in the archives of the government, would be engraved in characters of infamy on the registry of their native village." As a result, "criminals themselves would be restrained by the dread of this local publicity of their misdeeds." The "terrifying certainty" that convictions would be recorded and thus "stain the name and honor of their family" and their "desire of general esteem" would have significant deterrent value.

Germany, by 1867, had an even more advanced registration method-its Meldewesen, which required all citizens (not merely offenders) to register with the police and to report all travel and changes of residence. Whereas the French system was static in its content, reflecting only name and conviction-related information, the German registry contained individuals' names and addresses in each locality they lived or visited. The registry served a broad variety of purposes, including identifying children subject to compulsory vaccination, monitoring satisfaction of military service requirements, and allowing police to apprehend criminal suspects. Moreover, because it contained criminal conviction information, the registry allowed governments to exclude individuals from a jurisdiction. Writing in his seminal book European Police Systems (1915), American penal reformer Raymond Fosdick observed that "[n]o laws are more rigidly enforced than those relating to the Meldewesen. Evasion is difficult and when detected is severely punished."

At the time, in Berlin, which had its own registration system since 1836, twelve million cards were on file, containing data on all persons who had at any time been in the city, and the registration bureau itself had two hundred employees and occupied 130 rooms. Data on file included an individual's place and date of birth, parents' names, current and prior residence (and moving date), children's names and dates of birth or death, religious affiliation, and criminal record. Fosdick wrote that in Germany, as well as in Austria, the Meldewesen constituted the "core of the detective department. Through its agency the police can put their hands on any citizen when they want him." The Meldewesen was also used to check the identities of "suspicious persons or persons inhabiting disorderly houses" to determine if they were wanted for crimes. With the system, Mathieu Deflem recently wrote, "German police squads would raid hotels, lodging houses and public places, and check apprehended persons with information collected in the registration system."

The system was complemented by the Steckbrief, a daily or weekly notice containing the names or descriptions of criminal suspects being sought in Germany and elsewhere. Police used the notice to both apprehend fugitives and, upon arrest, check their identities against the registry to learn if they were wanted.

Fosdick had high praise for the Meldewesen and the Steckbrief, writing that they "together form[ed] an intricate network." Police were trained to know the inhabitants of their beat and unknown individuals immediately attracted attention. Providing a false name was the only way for the system to be defeated, and even this was of little avail in the case of German citizens, "who must satisfy the police as to their identity by means of military papers or their employment and insurance cards. In cases of doubt, men are held pending further investigation."

(Continues...)

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Details zur Ausgabe

• Verlag: Stanford Law Books
• Erscheinungsdatum: 2009
• Sprache: Englisch
• ISBN 10: 0804761361
• ISBN 13: 9780804761369
• Einband: Tapa blanda
• Anzahl der Seiten: 310
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Nicht verfügbar