Public shaming has reached new levels in Utah. In February 2016, the state became the first to publish an online registry of white collar crime offenders. The Utah White Collar Crime Offender Registry (“Registry”) has been a long-time goal of Utah Attorney General Sean D. Reyes, who stated that “[w]hite-collar crime is an epidemic in Utah.”
According to Attorney General Reyes, the Registry “will further equip citizens to protect themselves from financial fraud by making information much more accessible in this digital age.” The two primary motivating factors behind the creation of the Registry appear to be protecting investors and incentivizing the repayment of restitution. In addition, when legislation for the Registry was introduced, Attorney General Reyes alluded to what may be a third factor—“Utah’s unique personal interweavings and close relationships”—noting that Utah citizens trust those in their neighborhoods, churches, and professions. Attorney General Reyes went on further, stating, “[w]hile in many ways trust is a healthy community trait that fosters social strength and business success, it also leaves [Utah] citizens quite susceptible to those who would exploit that trust.” This rationale—which seems to imply that Utah citizens are overly trusting and therefore need protection from the state—is questionable at best and borders on paternalistic.
A recent press release from the Utah Office of the Attorney General touts the Registry as a tool that “protects future investors, deters fraudsters and incentivizes restitution by allowing removal from the [Registry] after full repayment.” However, it is unclear how effective the Registry will be. First, the information provided on the Registry may not always be correct. Online visitors must acknowledge a disclaimer before entering the Registry that states, “the attorney general does not guarantee the website’s accuracy or completeness.” Second, the information provided on the Registry is already public information, meaning anyone—including investors—can already access it. While publication to a searchable online platform may make the information more accessible, it isn’t necessary. Finally, it is uncertain whether removal or exclusion from the Registry will sufficiently incentivize repayment of restitution. In addition, tying removal and exclusion from the Registry to an individual’s ability to repay restitution may burden those individuals with limited financial means.
It appears that the only other similar registry maintained in Utah is an online sex offender and kidnap offender registry—meaning the state has chosen to single out individuals convicted of financial crimes for inclusion on a public registry over individuals convicted of other crimes, including violent offenses. The rationales offered for creating the Registry are not sufficient to justify equating white collar offenders to sex offenders and kidnappers. This, coupled with a Registry that is likely to be ineffective and unnecessary, leads one to conclude that the true justification for the Registry is shaming white collar offenders into paying restitution. Indeed, one of the sponsors of the bill creating the Registry, Representative Mike McKell, acknowledged that this may amount to a “scarlet letter” and stated, “I’m comfortable with that. If it’s a public shaming to the extent that it’s someone that’s stripped retirement accounts from seniors, I’m okay with that.”
Publication to an online forum also raises significant concerns related to privacy and the potential harassment of listed offenders. The Registry provides extensive information for each listed offender, including the offender’s full name, any aliases, date of birth, height, weight, eye and hair color, qualifying conviction(s), summary of offense(s), and recent photograph. Over 100 individuals are currently listed on the Registry, although this number is expected to rise to approximately 230 individuals over the next several months.
Individuals Required to Register
Per Sections 77-42-105 and 77-42-106(2) of the Utah Code, individuals convicted after December 31, 2005 of a second degree felony for any of the following offenses are required to register with the Utah Office of the Attorney General:
- Securities fraud;
- Theft by deception;
- Unlawful dealing of property by fiduciary;
- Fraudulent insurance;
- Mortgage fraud;
- Communications fraud; and
- Money laundering.
Individuals remain on the Registry for ten years for a first offense, and for an additional ten years for a second offense. If convicted of a third offense, an individual will remain on the list for a lifetime.
Individuals Excluded from the Registry
Individuals are not required to register if they have (1) fully complied with court orders at the time of sentencing; (2) paid all court ordered restitution in full; and (3) not been convicted of any other offense for which registration is required. See Utah Code § 77-42-106(3)(a)-(c).
Removal from the Registry
Removal from the Registry is possible, but requires full repayment of any court ordered restitution. The Utah Code and the Utah Administrative Rules outline the procedures for removal.
Utah’s White Collar Crime Offender Registry is the first of its kind in the country, and will hopefully be the last. It is unlikely that this type of registry will serve as an effective or even necessary tool to protect investors, ensure repayment of restitution, or deter future criminal conduct. In addition, serious concerns related to privacy and public shaming should dissuade other state legislatures from enacting similar registries.