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Digitizing’s Downside

Progress is the watchword of our times. Whether technological, political, or even human, we have faith that progress improves. Progress, moreover, moves hand-in-hand with efficiency. Efficiency gives us more good things faster: who could argue with that? Twined together, progress and efficiency form an unbeatable pair, like shade and a cool drink. Rarely do we hear of any negative sides of either.

Efficiency, however, is good until it’s not. Efficiency in a microprocessor is undoubtedly good, but is efficiency in the legal world always beneficial? Were we Richard Posner, we would think so. It is not clear that the ordinary, prudent person would agree, however. In fact, as Theodore Dalrymple has indicated, efficiency in criminal law can sometimes be too much of a good thing.

Filing systems may seem to be like the microprocessor: efficiency can never be bad. But in a society ruled from desks, file-keeping translates easily to power. Increasing the efficiency of record-keeping gives the state greater ability to control its citizens, an ability it cannot help utilizing, usually to their detriment. The more the state knows about an individual’s background, the more the state can take advantage of its superior position of power to maximize punishment beyond what is needed for rehabilitation or common standards of just desserts.

Efficiency and Prosecution

Digital record-keeping increases the efficiency of criminal prosecution in three ways that can harm liberty. First, it reduces the amount of physical space required to maintain files, thereby increasing the ability to search them. Second, it increases records’ durability, resulting in greater permanence. Third, it makes records easier to communicate from place to place. When these three efficiencies combine, they remove the burdens of paperwork that incidentally protected rights.

When considering plea bargains and post-conviction sentencing, the past criminal record of a defendant is relevant. Past convictions form the basis for calculating sentences in both federal and state courts. Even without guidelines, judges use an individual’s criminal past as a standard for punishment.

This assumes the judge’s ability to discover an individual’s history. Record-keeping efficiencies are a prime determinant of this ability. Previously, criminal records were stored like all other official papers: They were housed on paper held together in a file-folder or cabinet. This storage medium suffered from many serious deficiencies when compared to a digital format. It served to create a kind of file entropy where ordered information gradually descended into disordered rubbish. Three detriments are of special interest here.

First is the space necessary to maintain records. While we can digitally contain all the records a court needs in a closet (or at least the equipment to reach out and find it), paper records are voluminous. Some may even remember the tall, heavy drawers called “file cabinets” that housed many feet of paper records, indexed according to various schemes.

Such systems had a significant impact on investigating criminal records. While attorneys now query databases themselves, simultaneously searching across multiple databases and records, searches once required teams who combed through record-collections one at a time. Because individuals rather than machines performed the work, fatigue, sickness, long nights out, or even bad moods affected their labor. Error was inevitable. Such irregularity and error became increasingly common as the complexity of the task increased. While searching last month’s or last year’s files was easy, searching last decade’s was more difficult, creating inefficiencies that protected older information from even the most diligent searching.

The problem of searching old files was particularly acute as new records grew in number, displacing old records from their shelves. Records would then be moved from the file folders to off-site storage containing its own, often more byzantine organization. Even for experienced file-searchers, scouring these expanded record collections could be difficult and inefficient.

The second factor that digitalization alters is the longevity of records. In addition to being bulky, paper records have a limited shelf-life. Not only does ink fade, making fingerprints and writing impossible to read, so too do random events occur that render records unusable. Rodents could devour the records. A sprinkler system could drench them. Heat might accelerate the process of fading if stored in a non-climate-controlled facility. Any number of events could render files inaccessible and given the impossibility of backing them up, this loss would be complete and permanent.

The third factor affecting file entropy was transportation. With paper files, movement is difficult. At the very end of the age of paper, faxing a document was possible but expensive and time-consuming. Consequently, large records were not likely to be faxed and jurisdictions were unlikely to pursue all the possible records for every residence an individual had. The other option was mail, which required either sending originals (risking loss) or copies (which were time-consuming to produce).

While the effort involved in sending files might be worth the candle for criminals with serious charges or crimes extending between jurisdictions, for most offenses (lesser felonies and all misdemeanors) jurisdictions were unlikely to engage in the extensive search required to determine an individual’s prior convictions.

People who have earned their liberty deserve the protection of wiser laws more carefully designed for our technological age.

This difficulty in transport meant individuals had true liberty of movement: they could pack up their lives, move somewhere new, and even if they could not start completely fresh, their past would only follow in a limited fashion. Renewal, and the freedom that came with it, including the freedom of moral and legal rejuvenation, was a real and viable possibility.

With the digitalization of files, relocating and starting anew is a virtual impossibility. Even for petty misdemeanors, prosecutors can easily reach out to all the jurisdictions where an individual lived and obtain their entire criminal history. Moving, even cross-country, no longer holds the promise of fresh beginnings. In a digital world, jurisdictions are not really fully separate entities. Instead, they link in powerful ways allowing distant prosecutors to maximize punishments based on a person’s past.

Records and Liberty

These questions drive deeply at the heart of liberty. Legislators drafted most laws for technological regimes far less efficient than the present. Laws considering a defendant’s past actions often have unlimited jurisdictional and geographical scopes. While we differentiate juvenile from adult actions, thus implicitly recognizing the justice of some temporal divides, if a person commits a crime at 18, that conviction still affects a sentence at 68. Worse, that 50-year-old conviction could carry the same weight as one received the year before.

Likewise, an individual could go to great lengths to rehabilitate themselves, spending great effort and expense moving across the country and yet, after making a single, small mistake, find that the past he worked so hard to escape, catches up to him, bringing his efforts at reformation crashing down. Gone even is the liberty of re-invention.

This is not to say that the digitization of records is not beneficial. It is useful in many ways to have extensive personal histories. Some inveterate offenders who make no effort to reform may deserve the full weight of 50 years of criminality bearing down. Others may be mentally ill; their record reflects the serious attention the court should pay either to their treatment or their confinement. The point is not to do away with digitization, but to recognize and adjust for its side effects.

Yet many more people are in a middle position where they have been charged with petty crimes after a long period of time or rehabilitative effort and find themselves undermined by mistakes they have admitted to, paid for, and attempted to put behind them. These people, who have earned their liberty, deserve the protection of wiser laws more carefully designed for our technological age.

A striking example from my own experience is a case where an individual with one felony battery, received in the 1980s while a juvenile, was charged in 2012 for being a felon in possession of a firearm. This was his only charge as an adult. He received it after giving permission to police officers who were looking for his nephew to search his grandmother’s house (and offering helpful advice once the officers were inside). The officers found a pistol next to the couch where he admitted he slept. The police had no reason to suspect him in connection to that or any other crime. When the federal government attempted to charge him, his only salvation was that the information on the note-card containing the details of his offense had degraded so badly that neither the full name on the card nor the fingerprint could be verified. A narrow escape indeed for a man who spent his whole adulthood obeying the law.

The problems of technology are not unsolvable. With some carefully constructed legislation, we can diminish the harms of technological record-keeping while preserving the benefits. In this vein, we should give renewed attention to sentencing laws requiring mandatory minimums based on past convictions and three-strikes laws.

Reforms to these laws should take particular notice of time. A three-strikes law could set a limit on when the three strikes could be accrued. Such a limitation would require convictions of offenses to be within a set period of time, perhaps 15 or 20 years.

For sentencing laws that require mandatory minimums or that contemplate misdemeanors and lesser felonies, geographic restrictions ameliorate concerns. A state could require that only those lesser offenses committed within its borders or within a regional area could be eligible for enhanced sentences. These boundaries could be combined with a time limit so that, as time passes, the geographic restriction narrows. For example, interstate convictions only within 10 years could be considered, and intrastate convictions within 20. Beyond that, convictions would fall off.

Efforts like these would go a long way toward restoring a basic balance of liberty upset by the digital revolution. They would recognize that, just as technology changes society, so it changes justice. Such change is not a simple, linear progress where more technology means more justice. With greater knowledge and greater technical control also comes the ability to inflict greater harm to our liberty. When this increase happens, we must replace what was random, circumstantial ignorance with an “ignorance” that is deliberate and studied in order to preserve that state of freedom we once enjoyed. We must, in other words, learn to forget what we once never knew.

Reader Discussion

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on July 24, 2020 at 11:29:42 am

The real issue I see being discussed has to do with the rate of technical change vs the rate that culture can adapt to that change. Culture only changes so fast. Technology changes faster than culture and the rate at which technology is changing is accelerating. Culture and technology must clash. And the degree of clashing will only increase over time.
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Younger people at least are aware of those facts and are braced for change.
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The issue discussed in the essay is in part about privacy. As computers become more prolific and as they integrate into everything privacy will decrease. Eventually we will live with little or no privacy. Don't take my word for it. Ask the computers that control the firmness and angle of people's beds and monitor things such as snoring. Alexis is in my Fitbit "watch/health monitor/music player/cell phone and text message notifier/electronic wallet/calendar/weather reporter/Starbucks card" so I'm sure Alexis will eventually be built in to bed computers so go ahead, don't take my word for it, ask your bed.
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Our history in law along with our discussions in Facebook and many discussion boards will not go away. They will remain accessible to everyone. They will become increasingly accessible over time. Small changes in the approach to how legal issues are affected will only be temporary. Law with respect to privacy will have to recognize and adapt to accelerating change. We need to look a little further ahead at how law would work when we have no privacy and everything we've written on any forum at any time in our life will be fully accessible to everyone everywhere.
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As long as we are free, so we are free to give our privacy away. Our personal information is valuable to others so there will be continued exchanges of privacy for other things of value. Government can always appropriate our personal information from the organization that collect our valuable personal information. We will always discuss our opinions in forums such as this one.
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I am more concerned with preventing technological changes from becoming instruments of extractive government. How do we prevent the growth of computers and decreasing privacy from becoming an instrument of enslavement? The answer to that begins with a discussion of how computerized reduction in privacy and computerized control over messaging can be used to affect liberty for good or bad. The essay touches on that lightly, and certainly this web forum is a great example of computerization affecting liberty for good (the best such forum on the internet by the way), but these are nothing compared to the capabilities of Big Tech and the cupidity of members of government.

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Scott Amorian
on July 24, 2020 at 11:33:29 am

Ahem!!!
Should we also *forget* anthropological records in order to not unfairly categorize a neanderthal specimen we happen upon in a cave in Europe. Would this provide us with a better understanding of the long dead subject if we were to forget that evidence of an attack that he launched so many eons ago against his compatriot cave man.

Seriously, is this a paean to ignorance? It all seems unnecessary; a needless assault on technology.
1) One should have a full understanding of a subjects background.
2) Mr Bristol's recommendations in the latter part of the essay actually answers the question. By suggesting that prosecuting and sentencing authorities exercise discretion and some wisdom in evaluating the totality of a subjects history, we need not dispense with efficient record keeping.
3) May I remind Mr Bristol that some of these same records which he would like to see consigned to rodent eating destruction MAY, at times, serve to demonstrate a subjects innocence in a current crime. Consider DN records and the fact that many accused have been ultimately absolved of thier crimes due to the availability of DNA samples from a past crime that matches a current crime but does NOT match the subject. How many individuals have been freed from prison due precisely to the availability of OLD records.

This is a solution in search of a problem.

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Guttenburgs Press and Brewery
on July 27, 2020 at 05:46:58 am

Advances in technology can lead to unanticipated consequences. Should "originalists" apply the laws under the circumstances under which the laws were adopted, or under the circumstances when the laws are applied? The archetypal example is the 2d Amendment: What "arms" did Congress (and the public) understand the amendment to address?

Before 1950 the US had a lower divorce rate than today, which many people look back to with nostalgia. But the US also had a higher abandonment rate. Especially in the frontier era, dissatisfied young husbands could simply empty the family bank account, board a west-bound train, and set off in a new town with a new identity to start a new life. His wife would be stranded at home--broke and unmarriageable until enough years passed (typically seven) to permit a presumption of death. With the rise of Social Security numbers, credit scores, etc., people have a harder time simply "disappearing." If you want to separate from your spouse, it probably make sense to go through the legal methods. Damn technological change.

Imagine a legislature passed a law banning arsenic from foods--but the law was passed in an era when technology could not detect arsenic below 100 parts per billion. Imagine today's technology can detect 1 part per billion. Must food manufacturers conform to this more rigorous (and expensive) standard? Imagine a law required that a steel beam used for bridge construction to not bend under X lbs of pressure--but the law was passed in an era when we couldn't measure deflections of less than Y. Technology has improved, and we can now measure smaller deflections. Has technology effectively amended the law, requiring stiffer beams?

Then there's hypocrisy. We lecture our kids about not picking their noses, with the understanding that everyone picks his or her nose--but we're not accustomed to the idea that omnipresent video will catch us at it. Likewise, legislatures might adopt a law setting the speed limit at 55 MPH, with the expectation that people will typically drive at 65 MPH. Today's technology may permit cameras to read each license plate entering and exiting a freeway, and to mail tickets to any car that covers a given distance at a speed that exceeds 55 MPH. Has the statute, in effect, been amended? To what extent should courts recognize that legislatures intend some "play in the joints"?

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nobody.really
on July 27, 2020 at 10:17:53 am

Nobody:

While I do not agree with some of the particulars of your argument, I do agree, in a fashion, with your "play in the joints" thesis.
Owing, perhaps, to a lack of precision in the language of the text or to a recognition that not all circumstances can be foreseen, it is not unlikely that the legislator(s) would expect that there is some "play in the joints" and not unlike a "stick-frame" house, it is this "play" which provides longevity to the structure.
However, one may argue, and I believe "practice" confirms this:
That play is left to the various policing agencies (not just the POH-Lice).
As in your 55MPH example, it is not the Legislator but the State Patrol that enforces (sometimes at whim or at the end of the month -Ha!) the Speed Limit and they may choose to enforce the 55 MPH limit. In fact, in my state, the rule of thumb is that drivers will not generally be cited if they travel within 10% of the limit. In fact, I have been so informed by several Patrol Officers.
So, yes, there is play in the joints. But where such "play" exists, it is left to the policing powers NOT to the legislators.
Unfortunately, it would appear that the Judiciary likes to "play" as well.

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gabe

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