Should Social Media Be Used as a Sentencing Tool?

Mass Incarceration in the US – A Costly Issue

The United States has a costly over-incarceration issue. As of May 2021, the United States has the highest rate of incarceration in the world with 639 prisoners per 100,000 of the national population. New York State alone has more prisoners than the entire country of Canada. In 2016, the US Government spent over $88 billion on prisons, jails, parole, and probation systems. Not to mention the social cost of incarcerating nearly 1% of our entire adult population. Alternative sentences can provide a substitute for costly incarceration.

incarceration statistics

What Are Alternative Sentences?

Typically, punishment for a crime is imprisonment. Alternative sentences are sentences other than imprisonment, such as:

  • community service,
  • drug rehabilitation programs,
  • probation, and
  • mental health programs.

While many generalizations about alternative sentences cannot be made, as the results vary by program and location, alternative sentences can and do keep people out of the overcrowded, problematic prison system in the US.

Could Social Media Play a Part in Alternative Sentencing?

In June 2021, a tourist in Hawaii posted a video of herself on TikTok touching a monk seal. The video went viral, and copycats hopped on the trend of poking wildlife for views. Hawaiian people, outraged, called for enforcement action and local media outlets echoed their call. Eventually, the Hawaii Governor released a statement that people who messed with local wildlife would be “prosecuted to the fullest extent of the law.”

monk seal

There are essentially three avenues of prosecution for interfering with wildlife: in federal court, state court, or civil court through the National Oceanic and Atmospheric Administration. Disturbing wildlife is a misdemeanor under federal law, but it’s a felony under state law, with a maximum penalty of five years in prison and a $10,000 fine. However, enforcement is unlikely, even after the Governor’s proclamation. Additionally, when enforcement does take place, it often happens out of the public eye. This imbalance of highly publicized crime and underpublicized enforcement led to a suggestion by Kauai Prosecuting Attorney Justin Kollar.

Kollar suggested sentencing criminals like the Hawaiian tourist to community service that would be posted on social media. Kollar looked to Hawaii’s environmental court as a potential model. Established in 2014 for the purpose of adjudicating environmental and natural resource violations, the environmental court has more sentencing tools at its disposal. For example, the court can sentence people to work with groups that do habitat restoration.

According to Kollar, requiring criminal tourists to take time out from their vacation to work with an environmental group — and possibly publicizing the consequence on social media — would not only be a more productive and just penalty, it would also create a positive and contrite image to spread across the internet. The violators would have an opportunity to become more educated and understand the harm they caused. Kollar wants people to learn from their mistakes, address the harm they caused, and take responsibility for their actions.

In an age when many crimes are visible on social media, what would be the pros and cons of using social media as a sentencing tool?

Some Pros and Cons of Using Social Media as a Sentencing Tool

In law school, we’re taught the theories of punishment, but not the consequences of punishment. While it’s important to think about the motivation for punishment, it’s equally, if not more, important to think about what happens because of punishment. In the case of using social media as a sentencing tool, there would likely be pros and cons.

One pro of using social media to publicize enforcement would be a rebalancing of the scale of crime v. enforcement publicity. This rebalance could help prevent vigilante justice from occurring when there is too big of a perceived gap between crime and enforcement. For example, when the TikToker posted her crime, she began to receive death threats. Many Hawaiians are fed up with their environment being exploited for financial profits. The non-enforcement and bold display of a wildlife crime led them to want to take matters into their own hands. In a situation like this, society does not benefit, the criminal does not learn from or take responsibility for their actions, and the victim is not helped.

An alternative sentence of wildlife-related community service publicized on social media could have benefited society because there is justice being done in a publicly known way that does not contribute to costly mass incarceration; helped the criminal learn from and take responsibility for their actions without being incarcerated; and, helped the victim, the environment, via the actual work done.

Additionally, this type of sentence falls into the category of restorative justice. Restorative Justice (RJ) is “a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.” The social media addition to an alternative sentence could provide the reconciliation with the “community at large” piece of the RJ puzzle. This would be a large pro, as RJ has been shown to lower recidivism rates and help victims.

While these pros are appealing, it is important to keep in mind that social media is a powerful tool that can facilitate far-reaching and lasting stigmatization of people. Before the age of social media and Google, a person’s criminal record could only be found in state-sponsored documents or small write-ups in a newspaper. As social scientists Sarah Lageson and Shadd Maruna put it, “although these records were “public,” they often remained in practical obscurity due to access limitations.” Today, any discretion, or presumed and unproven discretion in the case of online mug shots and police use of social media, can be readily found with a quick search. This can increase recidivism rates and make it harder for people with a criminal record to build relationships, find housing, and gain employment. The consequences of a readily available criminal record result in punishments not fitting to many crimes, as stigmatization is a part of punishment. Using social media as a sentencing tool could make the stigmatization situation worse, a huge con.

Perhaps there is a middle ground. To protect people from long-term stigmatization, faces and other identifying features could be blurred prior to publication. Similarly, identifying information, like names, could be excluded from the posts. By keeping the perpetrators anonymous, the scale of crime v. enforcement publicity could be rebalanced, the community aspect of RJ could be accomplished, and harmful stigmatization could be avoided. To completely avoid the possibility of stigmatization via social media postings, the program coordinators could post adjacent content. For example, they could post a before and after of the service project, completely leaving out the violators, while still publicizing enforcement.

Any iteration of the idea to use social media as a sentencing tool should be studied intensely regarding its consequences related to society, the criminal, and the victim, as it is a new idea.

 

Do you think social media should be used as a sentencing tool?

Is Cyberbullying the Newest Form of Police Brutality?

Police departments across the country are calling keyboard warriors into action to help them solve crimes…but at what cost?

In a survey of 539 police departments in the U.S., 76% of departments said that they used their social media accounts to solicit tips on crimes. Departments post “arrested” photos to celebrate arrests, surveillance footage for suspect identification, and some even post themed wanted posters, like the Harford County Sheriff’s Office.

The process for using social media as an investigative tool is dangerously simple and the consequences can be brutal. A detective thinks posting on social media might help an investigation, so the department posts a video or picture asking for information. The community, armed with full names, addresses, and other personal information, responds with some tips and a lot of judgmental, threatening, and bigoted comments. Most police departments have no policy for removing posts after information has been gathered or cases are closed, even if the highlighted person is found to be innocent. A majority of people who are arrested are not even convicted of a crime.

Law enforcement’s use of social media in this way threatens the presumption of innocence, creates a culture of public humiliation, and often results in a comment section of bigoted and threatening comments.

On February 26, 2020, the Manhattan Beach Police Department posted a mugshot of Matthew Jacques on their Facebook and Instagram pages for their “Wanted Wednesday” social media series. The pages have 4,500 and 13,600, mostly local, followers, respectively. The post equated Matthew to a fugitive and commenters responded publicly with information about where he worked. Matthew tried to call off work out of fear of a citizen’s arrest. The fear turned out to be warranted when two strangers came to find him at his workplace. Matthew eventually lost his job because he was too afraid to return to work.

You may be thinking this is not a big deal. This guy was probably wanted for something really bad and the police needed help. After all, the post said the police had a warrant. Think again.

There was no active warrant for Matthew at the time, his only (already resolved) warrant came from taking too long to schedule remedial classes for a 2017 DUI. Matthew was publicly humiliated by the local police department. The department even refused to remove the social media posts after being notified of the truth. The result?

Matthew filed a complaint against the department for defamation (as well as libel per se and false light invasion of privacy). Typically, defamation requires the plaintiff to show:

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Here, the department made a false statement – that there was a warrant. They published it on their social media, satisfying the second element. They did not check readily available public records that showed Matthew did not have a warrant. Finally, Matthew lived in fear and lost his job. Clearly, he was harmed.

The police department claimed their postings were protected by the California Constitution, governmental immunity, and the 1st Amendment. Fortunately, the court denied the department’s anti-SLAPP motion. Over a year after postings, the department took down the posting and settled the lawsuit with Matthew.

Some may think that Matthew’s case is an anomaly and that, usually, the negative attention is warranted and perhaps even socially beneficial because it further de-incentivizes criminal activity via humiliation and social stigma. However, most arrests don’t result in convictions, many of the police’s cyberbullying victims are likely innocent. Even if they are guilty, leaving these posts up can increase the barrier to societal re-entry, which can increase recidivism rates. A negative digital record can make finding jobs and housing more difficult. Many commenters assume the highlighted individual’s guilt and take to their keyboards to shame them.

Here’s one example of a post and comment section from the Toledo Police Department Facebook page:

Unless departments change their social media use policies, they will continue to face defamation lawsuits and continue to further the degradation of the presumption of innocence.

Police departments should discontinue the use of social media in the humiliating ways described above. At the very least, they should consider using this tactic only for violent, felonious crimes. Some departments have already changed their policies.

The San Francisco Police Department has stopped posting mugshots for criminal suspects on social media. According to Criminal Defense Attorney Mark Reichel, “The decision was made in consultation with the San Francisco Public Defender’s Office who argued that the practice of posting mugshots online had the potential to taint criminal trials and follow accused individuals long after any debt to society is paid.” For a discussion of some of the issues social media presents to maintaining a fair trial, see Social Media, Venue and the Right to a Fair Trial.

Do you think police departments should reconsider their social media policies?

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