Exposing criminals and punitive justice: is it time to reconsider the penal code?
During the last years, we have seen a rapid increase in websites devoted to publicly exposing convicted criminals. Some sites claim that the purpose is to “shame” criminals. Some claim the purpose is to make available information that will increase the safety of you and your family. Some are legal and operate within the framework of the law; others violate the law. Regardless of purposes and legal status, consequences for ex-convicts are clearly negative, and potentially disastrous. What this means in terms of punitive justice is often overlooked: what is an appropriate reaction to a situation where the expected consequences of a criminal conviction go far beyond the intended punishment?
Two weeks ago, exposure of ex-convicts was brought to a new extreme in Sweden with the launch of the website Lexbase. On this site, users could search for individuals, companies, ID-numbers, or look at maps with red dots indicating where ex-convicts reside. The database consisted of all convictions in Sweden during the last 5 years. For a small fee (roughly the equivalent of £5 per case), users could purchase detailed information about individual cases. The site was immediately popular. Within two days, it had had 3 million visitors (the Swedish population is just below 10 million). On the third day the site was hacked and the information was made available freely on other websites. On the fourth day, the site was closed due to security reasons, while its complete database was made available on the file-sharing site The Pirate Bay.
There has been a rapid increase in websites whose purpose is to expose convicted criminals. Many focus on certain categories, e.g. social groups or crimes. In January 2014, ukpaedos-exposed.com had listed 24,000 convicted child abusers in the UK. Similar to Lexbase, users can identify where former criminals (in this case sex offenders) reside. In the United States, CriminalCheck.com allows you to search for national sex offenders. Other websites focus on certain groups in society. For example, racist organisations focus on exposing criminals with certain ethnic backgrounds.
This trend raises a number of questions. How should we deal with the conflict between the right to privacy and the right to access information? What sort of legislation can prevent the spreading of certain legal records while preserving democratic values such as free speech? These are important issues, but they remain highly theoretical, and rely on the assumption that legislation will be effective. Furthermore, if we are to accept some of this type of activity, we need to ask ourselves what attitude we should take toward the suffering imposed on ex-convicts.
There is a practical dimension to information spreading in contemporary societies that should not be neglected. No democratic society has been particularly successful at preventing illegal file sharing of copyright-protected material. Illegal drugs can be purchased online. Prostitutes use the Internet to find clients also in countries where prostitution is illegal. We re-currently hear about how Interpol manages to strike down on networks of paedophiles, and one needs to be pretty naïve to believe that they have managed to once and for all deal with the problem. Whether or not legislators will manage to control the spread of criminal records even if they decide to prioritise it can, in other words, not be taken for granted. In a dire future a simple Google search will reveal the criminal record of any individual. Similar to how a Google search today of “[insert movie name] + torrent” will give you access to the movie of your choice, a Google search tomorrow of “Anders Herlitz + criminal record” could give you access to my criminal record. In a less dire future, exposure of crimes in the past remains confined to criminals of a certain type (e.g. paedophiles, non-European immigrants, murderers).
It is not hard to see that the consequences of these websites for ex-convicts span from mildly embarrassing to absolutely devastating. It is perhaps only slightly embarrassing if your neighbours find out that you were convicted for shoplifting in your youth, but who wants to share a house with a child molester? Who wants to hire him? Who wants to be his friend? Who would like to build a family with him? The consequences of these sites constitute an extra-legal punishment for convicts who have already done their time, something that in the recent past existed but was confined to celebrities. Internet facilitates the generalisation of a phenomenon that was previously confined to individual, rare cases that required the printed media to do the shaming (e.g. Roman Polanski’s statutory rape conviction, George Michael soliciting a policeman, Bertrand Cantat’s murder of Marie Trintignant).
Publicly exposing criminals is nothing new. The tabloid press has been doing it for a long time, and throughout history, many societies have included public humiliation in the range of punishments. What is new is the combination of a penal code that sentences criminals to one type of punishment and the systematic public humiliation of (certain types of) ex-convicts. In effect, what we see is the potential normalisation of two parallel, historically mutually exclusive, punitive standards. First, the current penal code with roots in modernity and the shift from corporal punishment to institutional incarceration. Second, a punitive standard that relies on mob mentality, disgust and human instincts to ostracise and humiliate criminals.
A key question is: should our courts and legislators take into account these new effects when convicting criminals and writing penal code? In particular, should convicted criminals receive shorter sentences or in other ways be compensated for the negative effects of increased exposure? Prior to the advent of web-based exposure public humiliation was not taken into account when allocating sentences for convicted crimes. Today, however, under our current penal code a court that sentences a rapist to 5 years in prison in effects condemns him to incarceration plus the effects for the criminal of inclusion in any potential sex offender database, which is likely to entail ostracising, difficulties finding a job, problems finding a place to live, as well as pain and suffering resulting from public humiliation. Consequently, a sentence previously equalling punishment X today equals X + Y. Consistency suggests we ought to discount for Y.
Discounting for the extra-legal punishment (Y) can be done in two ways. Either we adjust our penal code or court practices according to expected extra-legal punishments, or we compensate convicts for the unintended yet predictable outcomes of convictions. For example, the consequences for a rapist of being included on an exposure websites could be established to equal 6 months in prison, and the punishment lowered accordingly. On the other hand, compensating for the extra-legal punishment might entail computing some benefit that could be given to the convict in compensation for Y. For example, the same rapist could be given tax relief for a certain number of years, extended unemployment benefits, or priority in the allocation of social housing.
An alternative stance is of course to accept the extra-legal punishment, and say that this is what sex offenders, murderers, thieves and non-European immigrants deserve. Yet, if this path is taken, we should at the very least be honest about it and recognise that we are about to introduce a significant increase of punishment that we condemn criminals to, and that our societies have taken a turn toward embracing and applying both medieval and modern standards of punitive justice simultaneously.
At least two, generally accepted, ethical principles give us reason to discount for unintended, predictable outcomes of criminal convictions: proportionality and consistency. Folk conceptions of justice as well as various types of political and legal theory hold that punishments sanctioned by the state should stand in relation to the crime committed. Proportionality should in some way govern the sentences decided upon in courts. The introduction of extra-legal punishments is an increase in punishment, and so proportionality would require that this is taken into account. Another widespread idea with solid theoretical grounding is that identical crimes should be met with identical punishments, over time and over space. If information technology means that an identical crime is punished harder now than it was 20 years ago if the same laws are applied, then consistency requires that we take this into account.