Tuesday, June 23, 2009


The case of Smith v. Doe* was decided by the US Supreme Court in 2003. It was the first time the Court had to decide whether the numerous State sex-offender laws violated the Ex post facto prohibition of the US Constitution: that punishments for a crime cannot be assigned ‘retroactively’, that is, by laws that were passed after the crime was committed or after the defendant was either convicted or entered into a plea arrangement.

Interestingly, the case reached the Court after the State of Alaska appealed the decision of the relevant Appeals Court which had overturned a District Court ruling that the sex-offender registration and notification requirements were not ‘punitive’ but merely regulatory. The Appeals Court, in other words, overturned that District Court and said that Yes, the requirements were indeed punitive and therefore could not be applied to persons convicted or plea-arranged before the requirements were passed by State legislation (usually, the date of 1995 is a handy general benchmark for passage of various State requirements).

The Supreme Court overturned the Appeals Court decision, thereby establishing that the various State laws’ registration and notification requirements were not punitive but were merely ‘regulatory’, thus that the requirements were not imposing additional punishments. And thus the Ex post facto prohibition, which only applies to criminal punishments, did not apply and was not breached.

Interestingly, the Supreme Court divided 6-3 in its decision. The three Dissents are well worth reading for their astute compilation of observations as to how the requirements are indeed punishing in their effects, even if the State legislatures insist that their intent is purely administrative and regulatory, and not intended to punish sex-offenders as individuals or as a class of convictees. And one of the six Justices, Souter, actually stated in his separate Concurrence that it’s 50-50 (he uses the phrase “rough equipoise”) whether these laws are indeed punitive rather than regulatory. In fact, he says, if it weren't for the necessity to presume that a legislature would never intentionally pass an unconstitutional law, he says, he would have voted against this thing (which would have made it a 5-4 Decision).

So the question of whether these laws are punitive in effect even if not also punitive in intent, is a key foundational concern as to the continued official legality of all of these laws. Not even the Supreme Court is really and completely sure about it.

Should the Court decide in the future that these laws are indeed punitive in effect, then (generally) pre-1995 convictees or pleas cannot be required to submit to the registration requirements. And, of course, those requirements are growing like Topsy all the time, at both the State and Federal level, as additional ‘requirements’ and expanded ‘definitions’ of ‘sex offender’ are brought into play; the Adam Walsh Act is just the most notorious recent example.

The Court, as the Dissenting Justices Stevens and Ginsburg noted clearly, can only defend its ‘nonpunitive’ holding by focusing narrowly on the actual text of the laws and on the presumption that legislatures and legislators would not deliberately or knowingly try to subvert the Constitution when they pass laws - and that is probably a too-big presumption to be making nowadays. Which says a lot about just how dangerous the stampede of 'mania law' can be to Constitutional integrity.

And thus too, the Court’s Concurring Justices do not - cannot - allow themselves to notice the tremendous ‘social context’ of the public attitude toward the so-called sex-offender, a level of emotional uproar that can arguably be characterized as a public ‘mania’.

Thus, when the Court finds that merely publishing existing public records of convictions and pleas on the Internet is nothing but a technologically up-to-date method of providing what folks could find out for themselves anyway, the Court ignores a great deal of what is going on in the country beyond the bare text of the laws. For one thing, most folks aren’t going to spend much time going down to the courthouse or going to court-case websites in order to trawl for particular cases, but if it's all there at the click of a mouse, then that's a whole different ball of wax. It’s probably true that nobody wants his or her (but so often ‘his’ in these sex-offense matters) unhappier life-experiences made widely and instantly available on the Internet.

And for a second thing, that’s especially true when one’s particular type of offense is the subject of a sustained public frenzy. IThe Internet bit is more the equivalent of being forced to wear a colored star on one’s clothes than not; indeed some States consider special license-plates, which is an ominous slide toward the star-on-your-coat requirement.

Nor does the Court ‘find’ that many registered sex-offenders (RSOs) experience much harm from the requirements (and the publicity). But that takes a lot of not-noticing on the Court’s part, although it’s also highly probable that large numbers of RSOs are already so publicity-averse that they fear attracting any more ‘attention’ even by publicly reporting their difficulties with housing, employment, travel, and general societal activity.

So it’s not at all certain that these laws will continue to ‘enjoy’ their Constitutional status, at least in the matter of being retroactively applicable to convictees/pleas that predate 1995 or so.

And as for being justified as ‘regulatory schemes’ in the service of public health and safety, the laws are also dubious. Their necessity is based, the States claim (and the Court still finds) on the danger posed by “the high risk of re-offending”. But the Court has been highly selective in the ‘scientific and expert’ opinion that allegedly supports the ‘high recidivism’ assertion. Indeed, the Court mentions only one study, which dealt with child-molestation, and ‘found’ that such persons might not commit a second offense for perhaps 20 years after their first conviction. Child-molestation is only one small fraction of the sex-offense menu, and it’s a legitimate question whether that study (done in the late 1980s) was properly conducted, and with a scientifically neutral attitude toward the outcome.

Sooner or later the rather extraordinary low-recidivism rate of most sex-offender categories will be ‘noticed’, and when that happens then the ‘pool’ of sex-offenses whose perpetrators pose a genuine and grave risk to public safety will shrink, probably by a very large percentage, and that will in turn raise great questions as to the justification for claiming a government’s overriding power to act to preserve public safety.

Nor can one say that these laws and their requirements are just the same as requiring persons to get drivers licenses or submit to professional accreditation. Most folks don’t mind being identified publicly as motor-vehicle operators or as doctors, lawyers, hair-stylists or any other ‘accreditation-required’ career persons. On the other hand, most people, especially in these manic times, would certainly not want to be publicly noted as ‘sex offenders’, or for that matter as any member of a conviction-category. We need look no further than the Beltway these days to see how many ‘upstanding’ individuals are dead-set on trying to avoid being publicly identified with assorted crimes they have or may have committed.

Justice Ginsburg, one of the Dissenters, also adds that she is very concerned that these laws and their registration schemes provide utterly no possibility for ‘rehabilitation’ – they either presume that no rehabilitation is possible or don’t really consider an RSO’s ‘rehabilitating’ himself to be relevant. And if rehabilitation is irrelevant, then one has to question just what the law is trying to do. Supporters might claim that even if it’s possible to rehabilitate, it’s not probable – which would be a reasonable possibility only in a very small fraction of the many types of sex-offense.

Or supporters might simply claim that the ‘damage and harm’ caused by a sex-offense poses such a threat that a government can afford to take no chances – but the level of damage and harm so great is only caused by a small fraction of sex-offense types. And even then, one has to note that the human species has survived the assorted downsides of sexual activity for thousands of years: with all respect to 'pain', it is hardly outlandish to imagine that the members of the species are far more resilient than victimology gives credit for. Nor has anyone actually gotten around yet to establishing just how much - or even how to credibly measure - 'pain' and 'harm'; it's not enough simply to repeat the mantra that this or that is 'traumatizing' and that therefore substantive corrosion of the Constitution is necessary and justified.

Nor is ‘zero tolerance’ or the related ‘if only just one’ justification sufficient here. The complex of sex-offense laws and the public mania constitute a tremendously ominous development in American law, legislation, jurisprudence, politics, culture, and society. We as a society are starting to make the kind of laws, in a general atmosphere of public agitation, that marked the early stages of totalitarian rule in far too many countries in the last seventy-five years.

'Emergencies’ of ‘public safety’ that required ‘suspension’ of rights for certain classes of citizens or persons; the ever-expanding definitions of what and who constituted a public ‘threat’; the abandonment by courts of any pretense of impartiality and of long-established principles of process and procedure; the ever-expanding scope of the police power of the government; residency restrictions; ‘civil’ commitment, especially on the basis of vague or elastic definitions of ‘mental problems’; all assisted by a sensation-and-profit minded media … all of these are ominous indicators.

The creation of certain ‘classes’ of person or citizen for whom the usual protections of law do not apply can never spell anything but danger for a Western society. The ‘kulaks’ of early Soviet civic demonology, and the numerous ‘classes’ designated as dangerous or odious by the Nazi regime, are only the most notorious examples of how publics and citizenries can be whipped up into the most lethal and vicious ‘hunts’. And that never ends well – and certainly not for a democracy.

Many members of the SO and SO-support community are naturally concerned for particular cases, and that’s very understandable. I’d just like to say a word of what I hope is taken for encouragement: this entire sex-offense law complex is balanced, like an upside down pyramid, on a verrrrry iffy ‘ground’, i.e. that these laws a) are not punitive but rather ‘regulatory’ and that they cause no intolerable problems for registrants; b) that there is a high recidivism rate among ‘sex offenders’ as a (far too) generalized ‘class’; and that c) the Registry requirements and civil-commitment and residency restrictions are actually effective in what they claim they are there to do, which is to ‘protect’ the public and especially ‘the children’.

None of these grounds is accurate, and if you can see that and can’t imagine what you’re missing that the Courts (State and Federal) can ‘see’, you are not losing your mind – rather, the Courts up until now have been mostly avoiding the very real and clearly definable ‘problems’ with the Registry schemes. That won’t last forever, and you can go on a number of sites among the SO-support community to see that individual State courts at all levels and even some Federal District and Circuit and Appeals Courts, some courageous judges and justices at all levels, are seeing that now.

And at this point, even legislators at all levels are starting to see that as well, even if for no other reason than the country and the States no longer have the cash to throw at a politically ‘popular’ but deeply and even Constitutionally harmful scheme.


*The case reference is 538 U.S. 84 (2003); it can be Googled as “Smith v. Doe”, and the Cornell University website maintains an excellent cache of all Supreme Court decisions, with Summary, Opinion, Concurrences, and Dissents. The URL for this case on the Cornell site is http://supct.law.cornell.edu/supct/html/01-729.ZS.html.

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