A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History
Barry University - School of Law
April 15, 2013
In The Dark Knight Rises, the latest installment of the Batman Dark Knight Trilogy, Selina Kyle – aka Catwoman – strikes a deal with the devil: she agrees to aid the terrorist Bane in defeating Batman in exchange for receiving access to technology that, purportedly, will eliminate, not just her criminal record, but all record of her existence, in every database worldwide. As one film critic wrote, “[s]he's motivated not just by self-interest, but a more visceral disgust at a world where people have no chance to redefine themselves, whether they're teenagers who've posted something dumb on social media, depressive billionaires [like Bruce Wayne], or talented criminals trapped by past misdeeds...” Catwoman’s choosing to work with Bane illustrates how highly she prized the chance to regain control over her identity. In other words, her choice evinces the notion that a person’s “good name” or reputation has value beyond measure as a reflection of the community’s opinion of her character. However, like her, individuals with criminal records face daily life with destroyed or diminished reputations. As a result of this damage, those who carry the stigma of criminal conviction suffer, not just socially, but also psychologically, and even economically. Their degraded reputations are a collateral consequence of their convictions that consigns them to forever live with the stigma of “ex-offender status,” without the hope of restored reputation.
Most current discussions of collateral consequences of incarceration, reentry barriers and discrimination against those with criminal records center on either of two notions: (1) fairness (or the lack of fairness) of continued, unforeseen, or disproportional punishment; or (2) legislatures and the executive (in the guise of administrative agencies) usurping the sentencing function of the judiciary through the imposition of collateral consequences. This article posits that an even more powerful argument against the many collateral consequences of incarceration can be made when one focuses on the concept of reputation as property and reconceptualizes the damage to reputation suffered by the previously convicted as a government taking of private property for which just compensation is due. It further argues that such a focus renders it necessary to examine the powerful role that stigma plays in criminal punishment and the potential of destigmatization to restore reputation as “status property” to the previously convicted in order to remedy this government taking. In the United States, there is currently neither the right to nor the expectation of restored reputation for those who have been adjudicated guilty of a criminal offense. However, in order to compensate for the taking, the previously convicted must be afforded a “rebiography right” based upon her interest in restored reputation – an interest that flows from viewing reputation in this context as property. The British legal system has sanctioned a form of “rebiographing” in that it provides for one’s criminal record to “expire,” over time and with continued good behavior, thus allowing the previously convicted person to disavow her criminal history. One scholar notes that “[w]ithout this right [of rebiography], ex-offenders will always be exoffenders, hence outsiders, or the Other.” This article seeks to tie this idea of rebiography to an actual substantive “rebiography right,” stemming from the inherent value of reputation as property and, thus, the taking of it as constitutionally cognizable.
Part I of this article reasons that stigma functions as a collateral consequence of conviction that attaches to “offender status” and describes the negative effects of stigma attachment that are suffered by those with criminal records. Part II argues that continued stigma attachment and damage to reputation constitutes a “taking” without just compensation. This Part asserts that the previously convicted person’s interest in her reputation is cognizable for purposes of Takings Clause analyses. Part II further argues that, despite their degraded status, those with criminal records have a property interest in their reputations as “status property” and that this interest is evidenced by both relational and personality theories of property. Part III articulates the idea of affording a “rebiography right” as just compensation to the previously convicted, along with examining the issues inherent in defining the parameters of such a property right and striking a balance between a collective interest in public safety and the individual’s interest in protecting the value of his name and reputation. In doing so, Part III explores whether a “rebiography right” that includes a right to restored reputation should eclipse an interest in providing access to information regarding the criminal records of the previously convicted. Part III concludes by briefly examining the limits of process in actually affording a rebiography right to reentering individuals and weighs formal process (through courts and administrative agencies, for example) against nonprocess (i.e., policies that prevent inquiries regarding an individual’s criminal history), in either case arguing that including the restoration of reputation in re-entry efforts will serve to remove a barrier to reentry – namely degraded reputation – thereby increasing public safety by reducing the chances of recidivism.
Keywords: collateral consequences, takings, stigma, reentry, rebiographyworking papers series
Date posted: April 18, 2013
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