June 6, 2012
"The Evolution of Unconstitutionality in Sex Offender Registration Laws"
The title of this post is the title of this new article authored by Catherine L. Carpenter and Amy E. Beverlin appearing in the May 2012 issue of the Hastings Law Journal. Here is the abstract:
More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.
This Article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes — what this Article dubs super-registration schemes — are not. Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations.
Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this Article is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.
June 6, 2012 at 03:41 PM | Permalink
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SCOTUS heard this too soon and should have waited to see what the government(s) really wanted.
In the Alaska case, Smith v. Doe, No. 01-729, the federal appeals court in San Francisco had ruled that while the state law was not intended as punishment, it had a punitive effect. In a dissenting opinion today, Justice John Paul Stevens, emphasizing one phrase, wrote that the majority ''will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment.''
Posted by: George | Jun 6, 2012 5:36:17 PM
actualy this is a lie!
the United States Supreme Court in 2002 DID say what a legal registry scheme was!
"Second, the Act does not subject respondents to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint. Hudson, 522 U.S., at 104."
"Also unavailing is that court’s assertion that the periodic update requirement imposed an affirmative disability. The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision."
and here's the real kickers!
first the FRAUD! played on the court by the govt criminals!
"Here, the statutory text states the legislature’s finding that sex offenders pose a high risk of reoffending, identifies protecting the public from sex offenders as the law’s primary interest, and declares that release of certain information about sex offenders to public agencies and the public will assist in protecting the public safety."
a decade of studies since show that was a LIE and a FRAUD when presented to the court a LEGAL FACT!
then we have this!
" This Court has already determined that an imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective. Hendricks, 521 U.S., at 363."
So let's see they said a LEGAL registry
was for those ADJUDGED to be DANGEROUS! not every FUCKING person put on the list! You know the the registry that when passed was setup for REPEAT and VIOLENT offenders! THAT was the legal one! it's been GONE FOR A DECADE!
then they said a registry that NO IN PERSON UPDATES
NO LIVING RESTRICTIONS
NO WORKING RESTRICTIONS
NO WALKING RESTRICTIONS
Doesn't take another fucking court hearing to know the state has VIOLATED EACH and EVERY ONE of these conditions therefore the current registry is in FACT and LAW ....both ILLEGAL and UNCONSTUTIONAL!
Posted by: rodsmith | Jun 6, 2012 9:19:02 PM
Plus let's not forget that the ones who started this stupidity Alaska has since went back and it's State Supreme Court has in fact ruled that the United States Supreme Court screwed up and that it is in FACT and LAW a retroactive punishment and therefore WILL NOT be applied retroactiviely in Alaska and to date the state HAS NOT appealed that decision back to the USSC.
Kind of tells me they know it's DEAD if they are forced to confront thier own 2002 decision!
Posted by: rodsmith | Jun 6, 2012 9:21:39 PM
and i'm STILL waiting for a high priced lawyer to show me WHICH page in the CONSTUTION they found this bull shit!
"Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4—18."
Sorry last time i looked at the constution all it says is "No Ex Post Law will be passed!" sorry not much wiggle room for creative interpetation there.....i not a damn thing about SURE IT'S FINE as long as it's NONpunitive"
Posted by: rodsmith | Jun 6, 2012 9:24:24 PM
"...to please an electorate that subsists on a steady diet of fear."
One of the reasons I started teaching a law class was so that there would be at least one person in the faculty lounge who did not routinely look down his nose at the electorate.
The amount of arrogance in academia is just staggering. Not everyone is afflicted -- Doug Berman isn't -- but it's all over the place. Maybe the people obsessing with the One Percent should launch an Occupy Law School movement.
Posted by: Bill Otis | Jun 6, 2012 9:55:28 PM
Mr Bill: "One of the reasons I started teaching a law class was so that there would be at least one person in the faculty lounge who did not routinely look down his nose at the electorate.
"The amount of arrogance in academia is just staggering. "
And when the jury renders a "wrongful exoneration"? What the hell is a "wrongful exoneration" after all? When the jury is too stupid? When the judge is too stupid? When the government is too stupid to prove its case? Talk about arrogance. You got it.
Posted by: George | Jun 7, 2012 1:43:13 AM
Correction. I think you call it a wrongful acquittal, Mr. Bill, so rephrase accordingly.
Posted by: George | Jun 7, 2012 1:48:09 AM
It's death by a thousand cuts once you're on the registry, and the legislature is more than happy to keep piling it on every year. In and of themselves, each new restriction, each new regulation isn't punitive -- it isn't even that big a deal. But then taken in the cumulative, it becomes a very big deal, indeed.
Posted by: Guy | Jun 7, 2012 1:59:51 AM
An erroneous acquittal (which is the phrase I use) is an acquittal rendered when the defendant is guilty and the evidence has so proven BRD. Was that so hard?
Posted by: Bill Otis | Jun 7, 2012 3:34:25 AM
"and i'm STILL waiting for a high priced lawyer to show me WHICH page in the CONSTUTION they found this bull shit!"
I think it's located on the same page that says we can waterboard people....
Posted by: more sanity please | Jun 7, 2012 4:46:56 PM
could be ...think that is also the same page that says the punishment for treason in wartime is DEATH!
Posted by: rodsmith | Jun 7, 2012 6:19:30 PM
I think it's on the same page as erroneous acquittals.
Posted by: George | Jun 7, 2012 6:59:31 PM
guy, if you would just support my proposed Erika's Law enabling icky pervs who receive voluntary surgical castration and removal of penis to be removed from the sex offender registry you would have a choice - sex offender registration or castration :)
of course, I kind of suspect that no icky perv will choose to have their sexual organs sliced off but that is kind of the point :P
Posted by: Erika | Jun 9, 2012 1:14:12 PM
i'd sooner suport a "shoot people named erika" Law! it would make as much sense and be about as usefull maybe more i'm sure a significant portion of those named "erika" are a continuing danger to themselves and others.....your a perfect example!
Posted by: rodsmith | Jun 9, 2012 1:56:33 PM
Erika, You don't need a willy to commit a sexual act. Physical castration won't work. Chemical castration only work to reduce sex drive for as long as the person is taking the drug and don't work on those that commit emotional sexual acts.
Posted by: Truth | Jun 11, 2012 9:27:37 PM
Another Criminal Justice Scam: Sex Offender Registries
As of 2011, there are approximately 750,000 sex offenders listed on the Sex Offender Registries in all fifty states (summarized and reported by the DOJ/BOJ (Dept. of Justice / Bureau of Justice.) Most of these Registered Sex Offenders (RSOs) will be required to register with local law enforcement for up to 10, 15, 25 years and in many cases for life. What is so striking about SOR laws is that they have very little to do with the reality in adding to public safety. I’ll explain.
People who break sex laws, like any other criminal act, are likely to be arrested, prosecuted and many legal factors, will be held to account for the wrong doing including be sent to state or federal prison. Sex crime laws are usually VERY harsh and could potentially send a criminal to prison from five years up to life in prison.
As one delves into this topic, one thing in particular stands out: The vast number of new sex crimes are actually committed by first time sex criminals (over 95% of cases committed by people not RSOs (Registered Sex Offenders.)
Broadly speaking, there are many other myths, fictions and outright political lies that surrounds sex offenders (convicted and the yet to be convicted), state and federal sex law statutes, the criminal justice system itself, the politics of sex crime laws and how the whole thing is spun by the TV “news” media.
The boiled down reason that there is such a thing as SOR laws is primarily based on the decades old profit-focused corporate TV “news” broadcasts that tend to sell fear and disgust at the expense of facts and reason. Convicted Sex offenders in the news has been and continues to be the goose that lays the daily golden egg where the intersection of good ratings always comes up to the “sex and violence” appeal of these kinds of stories.
Here is why I think the SOR laws are such a complete and utter fraud that continues to be perpetrated on the American public.
First of all, SOR laws do not prevent new sex crimes being committed by those already on the SOR list. Why? Because any person on the SOR list could, at any time, go out and easily commit a sex crime. A sex crime can be committed within a few minutes or hours of time if the potential offender wanted to. But Registered Sex Offenders do not commit new sex crimes in the vast number of cases that come to law enforcement. This is backed up by DOJ statistics that show low re-offense rates for those persons on the SOR lists. RSOs do know how to control their behaviors.
Next, is that SOR laws have unintended consequences in that they punish people who live, work or school with RSOs such as the children, spouses, parents, employers and teachers. This is because most SOR laws require that the RSO’s home, work and school address be publicly listed via the Internet for all to see. For this very reason, SOR laws are frequently considered humiliation and shaming laws. What good is there in that?
Next on the list is that SOR laws were never based on facts, empirical data or expert testimony to begin with. False assumptions and political calculations were the drivers of nearly all SOR laws since the early 1990s with laws such as the Wetterling Act that was based on the incorrect assumptions of high recidivism rates. There would likely be no SOR laws if the following true facts were ever considered by the legislatures that voted for them.
Here is the familiar run down of myths v. facts about SOR laws (from DOJ/BOJ): Fact/Myth #1 (repeat): RSOs have low re-offense rates of only 5% over three years time as a standard measure of all criminal re-offense rates (SOR laws were enacted based on the myth of high re-offense rates.)
Fact/Myth #2: The vast majority of new sex crimes are committed by people NOT on the SOR list but by other not-yet-convicted people (Only 5% of new sex crimes are committed by people on the SOR list and this fact cancels the popular “stranger-danger” myth that is prominently promoted by politicians and the "news" media which continues to falsely point the problem at RSOs.)
Fact/Myth #3: The vast number of child abuse crimes will likely be committed by a family member or somebody already known by the victim (and thus, it is not the RSO who lives down the street.)
DO SOR laws violate the Constitution? Yes, when the legislative branch assigns a legal status onto a citizen, the due process and double jeopardy clauses were violated. Also, since no other criminal category is required to register then too is the equal protection clause (14th Amendment) also violated. Other Amendment violations could be areas that touch on ex post facto law in some circumstances with retroactively applied and violation of the cruel and unusual clause (8th Amendment.)
But SOR laws do have a successful track record in that they are highly successful re-election tools that have been and will continue to be used by many political campaigns in the past. I tend to think of SOR laws as purely political with no benefit to people in the community. RSO families are, in a sense, political prisoners.
When you add it all up, SOR laws have no redeeming value whatsoever and yet costs society and the families of RSOs a great deal in terms of their dignity and successful reintegration (social and financial.)
The more you understand about SOR laws the more you will know about one of the greatest frauds every perpetrated on American society.
Posted by: Tom Madison | Jun 18, 2012 6:20:44 PM
I agree with Rod smith
Posted by: dildo | Aug 3, 2012 7:48:04 PM