Our New Permanent Punishment Machine

Robert Sykora

Robert Sykora, M.P.A., J.D., is the Chief Information Officer for the State of Minnesota Board of Public Defense and has interests in data policy issues, gay and lesbian human rights, and mediation for conflict resolution. He has been a leader in many community and state-based organizations and task forces, and has received numerous local and national awards.

In the offbeat Broadway hit Hairspray, an angry mother waves her finger and shrieks at her daughter: “you’re permanently, positively punished, Penny Pingleton!” She resolves to make here daughter forever wear a sweater with a large capital P so all will know of her transgression.

Whether it’s a capital P or any other scarlet letter, we know what Penny Pingleton’s mother did not: permanent punishment is destructive. Almost inevitably it causes unemployment, homelessness and increased dependency on government. Permanent punishment is unfair and unjust, especially for those who haven’t done anything wrong.

Yet over the past ten years we’ve built a Permanent Punishment Machine. We didn’t intend it. It evolved by increment on its own, patched together from a string of benign intentions.

The Permanent Punishment Machine starts up with an arrest. Imagine: because of a mistake or misunderstanding (or, if you’re black, because of racial profiling by police), you’re arrested. Maybe a prosecutor decides to charge you with a crime; maybe not. Maybe you are charged, only later to have the charge dismissed. Maybe you’re exonerated. In Hennepin and Ramsey counties, almost 60% of 2004’s misdemeanor charges led to dismissals or not guilty verdicts[1]. All of these events generate government records, which in days past meant papers that lived in file cabinets for a while, accessible to the public. It’s a good thing these records are public: secret police reports would quickly create the secret police; secret court documents would create Star Chambers. We all want public access to records of police behavior and prosecutors’ and judges’ track records.

But thanks to the arrival of the internet, the meaning of “public records” has expanded enormously. Commercial data harvesters now easily scoop up electronic government records and sell them on the world-wide web. Once there, the records become irretrievable and uncorrectable. The result: permanent punishment.

Our current data laws evolved in a world of paper records. Paper records aren’t easily disseminated, can quickly be corrected in case of error, and a judge can effectively expunge them. In our new world, electronic records aren’t so easily controlled. Records of your arrest on Tuesday morning can be available to the entire planet by Tuesday afternoon. Even if you can hire a lawyer and get a judge’s order to expunge the official record, the unofficial record likely will live forever on the internet. Landlords, employers, and business colleagues will take a pass when your name comes up on their screen. This permanent punishment will damage you profoundly, even though you are innocent.

Of course, it’s much worse if you get convicted. Pay your fine, serve your time, pay restitution, work your way through counseling, keep your probation officer happy, and pay your debt to society – for what? There’s no forgiveness, no reconciliation. The punishment never stops so you lose the incentive to become a contributing member of your community. We create a permanent underclass when we allow collateral consequences – lost jobs, lost housing, social marginalization – to be triggered by relentless internet availability of police and court records. This causes not only human tragedy, but also a self-perpetuating public safety problem: people with nothing to lose tend to break the law to survive. In other words, our permanent punishment machine lacks not only compassion, but common sense.

If you are poor and a person of color, it’s even worse. You’re much more likely to be clobbered by the criminal justice system. The ugly truth in the United States is that 412 out of every 100,000 white people are incarcerated while 2,290 of every 100,000 black people are locked up[2]. Severe racial imbalance like this is the result of an incompletely-understood tangle of cultural causes as well as simple race bias. The criminal justice system’s race problem is dramatically magnified when its daily record-keeping is globally disseminated by profit-making data harvesters.

Our new Permanent Punishment Machine is part of a radically changed social contract. New technologies have wildly increased our abilities to keep track of each other electronically. Our mistakes and humiliations are now digitally recordable with a simple cellphone video camera. Any dope can do it. It costs nothing and takes very little skill to post that damning video clip on web sites like YouTube. Once on the web, not only can my many pratfalls live forever, they can be copied and reproduced limitlessly by any of the millions upon millions of people with access to the internet. The consequences can be unforgiving, cruel, and reputation-destroying.

Whether it makes sense for us to treat each other in this way is a fair question but it’s a question asked too late. For the past decade we’ve gleefully put new technologies in place without adequate contemplation about their unintended consequences. We’ve made our techno-bed, now we haven’t much choice but to sleep in it.

It’s deeply wrong, though, for the advantaged to remain passive when we see disadvantaged people suffering disproportionally from the unintended consequences wrought by our fancy new technologies. Ho-hum, some say with a shrug, what’re you gonna do? The horse is out of the barn.

Here’s a tip: barn doors can be fixed. Future horses can be kept happily in their paddocks. We can start by addressing the most unjust situations: those where a person is arrested and never charged with a crime. The Minnesota Legislature can follow the lead of our Supreme Court, which in 2005 changed its own rules to restrict bulk harvesting of its data in cases that have not resulted in conviction, while still keeping records public for ad hoc searches[3].

People of good heart and benign intentions created the Permanent Punishment Machine; surely, we have the ability to disable it as we work together