“But this analysis of Megan’s Law underscores the possibility that government information policy might function as an alternative mechanism for influencing the extent to which private parties pursue particular exclusion strategies. When there are public policy rationales for favoring bouncer’s exclusion . . . the government can accomplish its goal by collecting and publishing the applicable private information.” 101.
Being a sex offender is not a proxy for anything (except, maybe, having been abused as a child oneself).[2] If we believe in the government’s interest in protecting children, we should praise the registration system resulting from Megan’s Law and the information distribution it entails.
But how many situations are there, really, in which this kind of collection and publishing are appropriate? In other words, what other exclusions should the government facilitate either through direct publishing of information (Megan’s Law) or subsidizing of “private enterprise to disseminate previously private information more widely?” 101.
Professor Strahilevitz mentions in passing that we collect this information for public dissemination and allow its use for exclusion for sex offenders, but not for murderers. But in the cases described by Professor Strahilevitz communal exclusion is still only legally acceptable for Tier III sex offenders: someone whose crime is “aggravated sexual abuse, sexual abuse or abusive sexual contact against a minor under age 13,” “involves kidnapping a minor (unless the actor is a parent or a guardian),” or occurs after another Tier II offense by the same offender.[3] For someone convicted of the most serious degree of murder, some States require imprisonment for life, and if they do not they are certainly able to.[4] We might also note that recidivism rates for murder are probably lower than for child abuse, but in any case we can imagine many reasons why murderer listing and resulting exclusion is less pervasive and less legally protected. Shelving murder for now, it is not clear to me that any other crime in the American imagination and experience measures up to murder or the abuse of children.[5]
On the other hand, the organization and publishing of databases of other crimes poses a risk that communities will exclude nominally on the basis of those crimes but practically on the basis of factors for which low-level crimes are proxies. Consider background checks. (My understanding is that) only you or a prospective employer can order a background check from the FBI.[6] If communities can order background checks of a similar kind, they will be more likely to perpetuate apparent biases in law enforcement and criminal sentencing.[7] For low-level drug offenses, we might all agree that these indiscretions should not be organized and provided by the government to residential communities, and that the government should not allow residential exclusion on the basis of low-level crimes. But what about the following crimes?
- High-level drug crimes (trafficking, etc.)
- Possession of dangerous and illegal weapons or firearms
- Offenses against property
Plausibly, each of these crimes justifies government information-gathering and possible allowance of exclusion by communities on the basis or prior convictions of an applying resident. In my view, the protection of children from sexual abuse is unique in that justification, when balanced against the rights of the convicted and the danger that crimes will be used as proxies for race or socio-economic background. What do you all think?
[1] http://www.thisamericanlife.org/radio-archives/episode/407/the-bridge: Part III is 20 minutes, which I know it a lot to ask. If you can skip to Part III for a few minutes, though, it will certainly be worth your time.
[2] http://www.bbc.co.uk/news/world-us-canada-15288865 (last slide)
[3] http://www.cga.ct.gov/2006/rpt/2006-r-0765.html
[4] a great article you do not have access to: http://www.newyorker.com/reporting/2012/01/02/120102fa_fact_aviv
[6] http://www.fbi.gov/about-us/cjis/background-checks. I recognize that googling someone’s name could provide a lot of the same information as a background check, but that is getting beyond the government’s role.
[7] For example: http://www.huffingtonpost.com/2011/02/01/blacks-far-more-likely-th_n_817105.html, but you get the gist.
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