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.

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.