South Carolina Criminal Defense Blog

Doug Berman at Sentencing Law and Policy picked up this story out of New York, where lawmakers are trying to pass a law that would require persons convicted of criminal domestic violence (CDV) to be listed on a registry similar to sex offenders. Most of the New York article is devoted to telling the story of one woman who was terrorized by her husband, and how a domestic violence registry could prevent the man from terrorizing others in the future.

Berman then takes the idea to its extreme, espousing that all serious crimes should be subject to registry requirements:

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

This is wrong on so many levels, I don't know where to begin. Maybe with what seems to be a basic misunderstanding or misinformation on the part of the professor - he seems to want to make all criminal convictions public, but the fact is that all criminal convictions are public and have always been. The information is there for anyone to find, and the only thing that a registry does is impose upon the accused a continuing obligation to register their current address and photograph so that anyone may find them at any given time. In most states, you can pull anyone's criminal history from a website in a matter of minutes. For example, official South Carolina records checks are available at SLED's website, and in many counties all arrests, regardless of conviction, including identifying information and the status or disposition of the case are available to the public on the judicial department's website. Registries have nothing to do with "criminal justice transparency."

The push for a domestic violence registry has everything to do with political posturing. The story of one victim is told for full dramatic effect - the monster who holds a knife to his wife's throat, spits on her, locks her and their daughter in a closet, and now is lurking on dating websites, seeking his next victim - it is used to grab attention, to instill fear, and to move the listener to action. The legislator who promotes this bill wants to be seen as a hero who is protecting the public. It gives him or her exposure as they lobby for their bill, and anyone who opposes the bill is painted as being "for" domestic violence. The legislator, our hero, is gathering votes.

We need to have domestic violence laws, because there are true victims of domestic violence and it is a problem that needs to be addressed. But the truth of the matter, which is not seen by the general public and certain sheltered law professors, is that "true" domestic violence cases make up a very small percentage of the cases that come through the court system. They are rare, indeed, for those that actually spend time in the criminal courts and see the cases that are made.

Much of what I see in South Carolina are manufactured domestic violence charges. Police arrive at a home and tell the residents if we are called, someone is going to jail. Citizens are jailed and charged with domestic violence because there was a verbal argument that got too loud. A wife calls the police and she is then arrested when the husband says hey, she hit me. People are jailed with no evidence of physical violence whatsoever. Husband and wife are both taken to jail, because police cannot decide who the aggressor was. Husband or wife make false complaints of domestic violence to seek an advantage in their divorce or child custody case. Then there are cases of simple assault, by the man or woman, that are one time occurrences and do not qualify as spousal abuse.

In South Carolina, the right to counsel is systematically denied to indigent defendants in the magistrate and municipal courts - our Chief Justice has instructed magistrates to ignore the U.S. Supreme Court and to not appoint counsel to those who cannot afford attorneys:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

The result is that those persons accused of CDV 1st offense in the magistrate courts or the city courts who cannot afford an attorney plead guilty, whether they are guilty or not. Professor Berman would have these individuals, who in my experience make up a significant portion of those charged with CDV 1st offense, emblazoned with today's modern scarlet letter, an online registry. My hope is that someone with Berman's stature and voice would not fall prey to the hype and politics of fear, and instead could broadcast the truth of what happens in our nation's courtrooms every day.