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On March 24, 2015, Utah Gov. Gary Herbert signed a new bill into law that creates a “Utah White Collar Crime Offender Registry.” This registry – which is the first of its kind relating to white collar crimes – comes on the heels of the news that Utah will now allow firing squads for death penalty cases when the drugs needed for lethal injection aren’t available.

Similar to a sex offender registry, the registry is expected to be available in about a year and will include a recent photograph of an offender who has been convicted of an enumerated list of felony white collar crimes (e.g., securities fraud, money laundering), a physical description and any aliases. For a first-time offense, a person will be on the registry for 10 years, for a second offense, another 10 years and for a third offense, the person will be on the registry for life.

The law does provide means for a person to petition the court to be removed from the registry if a series of requirements are met: five years having passed since the completion of the offender’s sentence, the offender having successfully completed all treatment ordered by the court or the board of pardons and parole office relating to the conviction, the offender having not been convicted of any other crime, the offender having paid all restitution ordered by the court, notice having been delivered to the victims and the office that prosecuted the offender and the offender not having been found to be civilly liable in any case in which fraud, misrepresentation, deceit, breach of fiduciary duty, or the misuse or misappropriation of funds is an element.

The New York Times deemed the registry “a scarlet letter of sorts on the state’s financial felons.” The bill’s chief sponsor, however, Rep. Mike McKell, has defended the law, and described Utah as a “hotbed for financial fraud” where “[m]any people in our state have trusting relationships with those who take their money in multimillion dollar schemes, and many times those particular people have already been convicted of financial crimes.” Gov. Herbert also stood up for the new law, saying: “Whether a criminal wears a white collar or a blue collar, I am a strong supporter of protecting the consumer and the public from fraud and predatory practices …This bill helps us do that and I’m proud to sign it.” Curtis S. Bramble, the legislation’s sponsor in the Utah Senate (and also the president-elect of the influential National Conference of State Legislatures), hopes that “the registry could become a best practice[unless that’s what he said] for other states.”

While protecting consumers from fraud and predatory practices is certainly a worthy goal, we’re just not sure whether this registry will help accomplish it. Overall, white collar criminals exhibit lower rates of recidivism, meaning that those who will be listed on the registry are (by comparison to other felons) unlikely to commit further offenses. And for those disposed to re-offending, it is unclear whether a registry of this sort is an effective tool in preventing them from doing so.

Furthermore, white collar offenders face extremely lengthy prison terms under the United States sentencing guidelines. In 1987, when the U.S. Sentencing Commission adopted the original sentencing guidelines, it sought to ensure that white collar offenders faced “short but definite period[s] of confinement.” [1] However, over the last 25 years it appears that the commission abandoned its original goal of ensuring short sentences and steadily increased the prison terms for economic crimes, and has done so without any empirical basis.

Courts have pointed out this inconsistency. See United States v. Gupta, 904 F. Supp. 2d 349, 350 (S.D.N.Y. 2012) (recognizing that fraud Guidelines “appear to be more the product of speculation . . . than of any rigorous methodology”). As a result, first-time, nonviolent offenders convicted of economic crimes will often face guidelines ranges equivalent to those of serious violent offenders. Compare USSG § 2B1.1 (2012) (total offense level of 32 considering a base offense level of 6 and loss amount of $100 million) with USSG § 2A1.3 (offense level of 29 for voluntary manslaughter); USSG § 2A2.1 (offense level of 33 for assault with intent to murder); USSG § 2A3.1 (offense level of 30 for criminal sexual abuse); USSG § 2A4.1 (offense level of 32 for kidnapping or abduction); USSG § 2A6.2 (offense level of 18 for domestic violence).

White collar criminals face more consequences in addition to lengthy prison terms: The collateral consequences (the loss of a license or other inability to continue practicing in one’s field of employment) often reverberate for the rest of their lives. Ellen Podger, a professor of white collar crime research at Stetson University College of Law has pointed out that, “A bricklayer who goes into prison comes out a bricklayer. A plumber who goes into prison comes out plumber. A lawyer who goes into prison doesn’t come out a lawyer. A stock broker who goes into prison doesn’t come out a stock broker.” The registry is one additional collateral consequence that need not be imposed. In fact, the real goal of the registry seems to be more public humiliation, which in today’s connected society, has most often been magnified tenfold because of press coverage and social media. More public humiliation and additional ruin of one’s reputation isn’t necessary for white collar criminals.

And, it’s possible that the registry may even be susceptible to a challenge on the basis of improper shaming. While no other states (yet, at least) have embraced a similar registry like the one in Utah, public shaming has been meted out as part of criminal sentences and at times, successfully challenged. Former Pennsylvania Supreme Court Justice Joan Orie Melvin, who was convicted on campaign corruption charges, fought a sentence requirement that she send handwritten apologies on photographs of herself in handcuffs to other state judges. This requirement was overturned and Superior Court Judge Christine L. Donohue called it an “unorthodox gimmick” solely designed to shame Melvin. Donohue wrote, “The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues.”

Similar to Hester Prynne, Utahans who are convicted of white collar offenses will be destined to carry with them the mark of their crimes, notwithstanding the questionable effect it has on protecting the public. We hope that other states refuse to follow Utah’s lead: Our society doesn’t need any more puritanical punishments.

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