Yesterday, Utah Governor Gary Herbert signed a new bill into law that creates a “Utah White Collar Crime Offender Registry” (the “Registry”). This Registry – which is the first of its kind relating to white collar crimes – comes upon the heels of news earlier in the week 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 (i.e. securities fraud, money laundering), a physical description, and any aliases. For a first time offense, a person will be on the Registry for ten years, for the second offense, another ten years, and for the third, on the Registry for life. The Registry does provide for a person to petition a court to be removed from the list if a series of requirements are met: 5 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 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, the offender having not 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.

Like Hester Prynne, Utahns 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.

The NY Times deemed the Registry “a scarlet letter of sorts on the state’s financial felons.” The bill’s chief sponsor, however, representative 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.”

Governor Herbert also proclaimed the worth of it, 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.”

While protecting consumers from fraud and predatory practices is certainly a good goal, we’re just not sure whether this Registry will help accomplish it. As an initial matter, “white collar criminals in general exhibit lower rates of recidivism,” meaning that those people listed on the Registry are (comparatively speaking) unlikely to commit further offenses. And for those disposed to reoffending, it is unclear whether a registry of this sort is an effective tool in preventing them from doing so.

Furthermore, as we’ve discussed previously on White Collar Alert, white collar offenders face extremely lengthy prison terms under the United States Sentencing Guidelines., as well as a litany of collateral consequences, such as the loss of a license or ability to continue practicing in one’s field of employment, public humiliation and/or the ruin of one’s reputation via the press. The Registry is one additional collateral consequence that need not be imposed. Indeed, it’s possible that the Registry may even be susceptible to a challenge on the basis of improper shaming. And, 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 this 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.”

Like Hester Prynne, Utahns 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.