A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History
Barry University - School of Law
January 15, 2014
West Virginia Law Review, Vol. 116, No. 2, 2013
In The Dark Knight Rises, the final 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. Like the fictional Selina Kyle, real 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 economically, and even psychologically. 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 criminal conviction, reentry barriers and discrimination against those with criminal records center on one of two notions: (1) the fairness (or the lack thereof) of continued, unforeseen, or disproportional punishment; or (2) the role of 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 there is an even more powerful argument to be made against the many collateral consequences. It focuses on the idea 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. Thus, it 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. 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.
Part II 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 III applies a regulatory takings analysis to the reputational damage suffered by the previously convicted and concludes that reputation is a form of “status property.” Part III further argues that continued stigma attachment and damage to reputation constitutes a “taking” without just compensation. Finally, Part III articulates the idea of affording a “rebiography right” as just compensation to the previously convicted. Part IV explores “rebiography” through the lens of the personality theory of property, examines the issues inherent in defining the parameters of such a property right, and briefly examines the limits of process in actually affording a rebiography right to reentering individuals with criminal records. This article concludes by arguing that including the restoration of reputation in reentry efforts will serve to remove a barrier to reentry — namely degraded reputation — thereby increasing public safety by reducing the chances of recidivism.
Number of Pages in PDF File: 32
Keywords: collateral consequences, takings, stigma, reentry, rebiographyAccepted Paper Series
Date posted: April 18, 2013 ; Last revised: January 24, 2014
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