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September 22, 2011

"The Evolution of Unconstitutionality in Sex Offender Registration Laws"

The title of this post is the title of this notable new article by Professor Catherine Carpenter, which is now available via SSRN.  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 particular article does not challenge the state’s legislative power to enact sex offender registration laws.  Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes -- what this piece dubs super-registration schemes -- are not.  Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation.

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 unmoored from its constitutional grounding because of its punitive effect and excessive reach.

September 22, 2011 at 01:42 PM | Permalink


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'legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.'

Yes, it could also be compared to the 'scorched earth' shotgun approach used by the military to inspire a 'shock and awe' method of criminal justice.

Posted by: james | Sep 22, 2011 2:26:47 PM

here are five facts about the sex registry and residency laws.

the authors of the washington institute for public policies study, involving 10 states, concluded that community notification and registration had little effect on sex offense recidivism. (lynn university, p 9)

seattle police detective bob shilling noted that seattles residency restriction law creates a lot more homeless sex offenders, which makes it a lot harder for us to keep track of them. [residency restrictions] do not work. in fact, they exacerbates the problem. (justice policy institute, p 27)

being on a registry has absolutely no bearing whatsoever as to whether [a person] poses a threat to a child. he could be a child molester or a person who urinated in public. (free range kids, p 1)

youth should not be on the registry because most youth behavior that is categorized as a sex crime is activity that mental health professionals do not deem as predatory. (justice policy institute, p23)

90% of sex offenses against children are by family members or acquaintances. the sexual abuse of a child by a stranger, previously convicted of a sex offense, is a rare event. (the scarlet letter of the 21 century)

Posted by: patricia win | Sep 24, 2011 2:24:40 AM

I am a mother (and a psychotherapist ) with two sons on the registry. One is completely innocent and the Innocence Project has taken on his case. The other had sex with a teenage prostitute ..she lied to him and the police about her age. She told them it was voluntary. This used to be a misdemeanor before these laws. Now my son has a felony. He lost the best job he ever had, worries all the time because he is a very involved father to his 2 yr.old. He fears losing him and can't pursue joint custody. This son was immature, made a mistake but he's never harmed anyone, especially not a child. Anyone who says the registry and these laws haven't harmed anyone doesn't know what they're talking about.

Posted by: patricia win | Sep 24, 2011 2:29:50 AM

And of course the entire premise that has driven this witch-hunt from the very beginning is patently false; children are not at risk of sexual assault from registered offenders. Yes, for every child, there is a risk of sexual molestation. However, according to the DOJ Office of Juvenile Justice and Delinquency Prevention, if the child is six or under, 58.7% of that risk comes from family members. 39.7% of that risk comes from family acquaintances. 1.8% of that risk comes from strangers, and the registered sex offenders who are in that stranger pool is so low that it is incalculable. As the age of the child increases, the figures alter, but only a little. The risk to children ages 12-17 is 94.3% from family and acquaintances, 5.7% from strangers, and, again, the percentage of registered offenders in the stranger pool is minuscule.

The media and politicians have done an excellent job of playing up that minuscule percentage--Gardner, Girrardo, Couey,--to the point that whenever the words "sex offender" are uttered, that is who the public sees and panics over.

The sad part of this is that we spend millions upon millions "protecting" the public from that minuscule percentage and virtually nothing on programs that could and would make an impact on the 90+ percentages.

Posted by: Shelomith Stow | Sep 24, 2011 9:31:21 AM

Frustrating that an academic article uses advocacy-flavored language like "electorate that subsists on a steady diet of fear." I think that the (correct, in my view) legal and constitutional analysis would be more effective if the author toned down the stump-speech rhetoric.

Posted by: Anon | Sep 25, 2011 4:26:38 AM

Ironic. Sex offender registration would not have saved little Jessica. Her fatal mistake? She opened the door. Period. Registered or not, she would have been taken from us by that repeat offender. Now, 123D, with the count starting at 14? We would be one Jessica ahead, and one ultra-violent repeat offender behind. Now, under the rent seeking lawyer's choke hold on the criminal law, we are one Jessica behind, and and one ultra-violent sex predator ahead. John Couey eventually died quietly of natural causes. He was taken to a hospital by prison authorities to try to save his life. She died rough. No authorities tried to save her. Jessica was still alive in a closet when the authorities banged on John Couey's door. Thank the pro-criminal, pro-government worthless make work lawyer.

Posted by: Supremacy Claus | Sep 25, 2011 7:11:02 PM

Correction. Megan opened the door in New Jersey. Jessica was taken from her bed, and made no mistake, in Georgia. The point is the same. The deceased have a low recidivism rate.

Posted by: Supremacy Claus | Sep 25, 2011 7:42:35 PM

Correction. Megan opened the door in New Jersey. Jessica was taken from her bed, and made no mistake, in Florida. The point is the same. The deceased have a low recidivism rate.

Posted by: Supremacy Claus | Sep 25, 2011 7:42:52 PM

Jessica is used up sexually. Couey buries her alive in a garbage bag. Couey takes ill after being condemned to death. He is rushed to the hospital by prison officials to try to save him. They do not want to be sued by lawyers. He has terminal anal cancer. Yet doctors cannot let him go. So he is tormented by futile end of life medical care. Again, this is to avoid being sued by the lawyer.

The lawyer has turned our world upside down. The sole reason to try to save a condemned man is to generate more lawyer fees. It is a form of theft and bad faith. Violence against judges and lawyers by victims' families is the sole recourse, because the legal system is rigged airtight in favor of every form of low life and against decent, ordinary people.

Posted by: Supremacy Claus | Sep 26, 2011 12:37:01 AM

And who do you consider decent, ordinary people, S.C.? Can one be a registered sex offender and still qualify for that distinction in your eyes?
You obviously have a "thing" against lawyers, and that is certainly your prerogative. The truth is that the sex offender registry doesn't save anyone. The couple of high-profile cases you mention plus a scant handful of other are responsible for the registry as it is today and the laws that control and destroy the lives of several million people including the families of the registrants, virtually none of whom have committed or ever will commit the types of acts for which these laws were written.

Posted by: Shelomith Stow | Sep 26, 2011 9:25:53 AM

Sex offender registry is a joke. It does NOTHING to keep anyone safe. NOTHING! What it DOES do, is keep you in danger. YES! I said danger. Why? A person who is on the registry is denied housing, jobs, and just everyday freedom of movement. Denying people of their constitutional rights creates anger and frustration. That, in turn, creates a person to make erratic decisions that can cause them or OTHER's harm. Yes, I am a registered offender. One that has lots of friends that believe I shouldn't have to register because of the situation. It was a consensual event. Although consensual, I should've made a better decision not to get involved. But, I AM HUMAN, and make mistakes JUST LIKE YOU (those reading this). I've been out of work for over two years and am losing ground. I get angry at the fact that I was denied 2 jobs JUST BECAUSE OF THE REGISTRY. The conviction was past the required time in order to obtain the job, but I was denied because I was on the registry. That is against the law of the registry but that doesn't seem to matter. The registry states:

Legal and Illegal Uses
Under the provisions of state law this information is provided for general public safety. A person is authorized to use this information only to protect him/herself or a child who may be at risk. The release of this information to the public is meant to assure public protection, not to punish the offender. It is illegal to use information obtained through this web site to commit a crime against a registered sex offender or to engage in discrimination or harassment against a registered sex offender. Anyone who uses this information to commit a criminal act against another person is subject to criminal prosecution and/or civil action.

Denying someone a job IS DISCRIMINATION! It also isn't assuring public protection for any child as children DON'T work! What it IS doing, is creating a sub-human level of joblessness and instability for those who are trying to make amends to a mistake in their past by providing society with a productive and legitimate lifestyle.

If I wanted to get involved with someone under age, believe me, I can go do that RIGHT NOW. That registration isn't going to make that decision for me. I have no desire, whatsoever, to do so, but it doesn't matter. The registration is punishing me for however long it can for the ONE and ONLY felony conviction in my life, for something that wasn't even a TRUE CRIME! True Crime? What's meant by that, you say??? There was no intent of doing wrong or doing harm to any person whatsoever. The intent to commit a crime was NOT there. Yet, I am classified as a criminal? Wow, I love this country. At least I used to until I now see how pathetic it is and how moronic the people are to allow the government to strip rights away from people and go way beyond the statute of limitation of a crime and sentence. It's called cruel and unusual punishment and should be declared illegal. But, that won't happen as long as the government keep on trucking with this idea and making themselves look like they are protecting YOU and YOUR CHILDREN. No one is protected from anyone. In FACT ARE, your most likely to have a non-convicted sex offender do harm to your child, not one that has been convicted. Therefore, another reason that the registry FAILS!


Posted by: JB | Dec 13, 2011 2:32:52 PM

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