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March 5, 2018

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

March 5, 2018 at 11:59 PM | Permalink


If being on a sex offender list violates the multiple punishment, then surely federal supervised release must also. Good gravy after serving the length that the feds assign Vs what most serve for same state crime is ridiculous. Key word is serve not sentenced and let off on parole early.

Feds are so full if themselves and something else as well.These elected idiots refuse to work with the other party and our fearless leader is gonna get us in international trade trouble soon. The russia tampering has side tracked the fbi so much they botched the follow thru on the guy in florida school shooting. How many fbi agents and managers got fired over that deal.

We need to have school officials, medical staff, law enfircement and the feds work together on trouble youths and the mentally ill. Thats the biggest attibute with shootings.
Then get rid of military style guns of high capa ity, but only after they have done step 1
Dont need tougher back ground checks, justbthat each outfit reports and follows thru on what theyre supposed to. More junk laws dont solve anything.

Posted by: MidWestGuy | Mar 6, 2018 1:27:08 AM

Junk laws blindly supported by Junk Courts. SORNA is clearly unconstitutional on its face and not merely by delegation to the AG the rulemaking proposition (without a public comment and feedback/response mechanism and period I might add).

Smith vs. Doe was the very worst decision (or mental masturbation) by our Supreme Court ever, and that was hard to do, but they did it by a deliberate misuse of the actual meaning of words. This has now allowed our cowards in Congress to create an International Megan's Law, where sex-crimes in our country are not sex crimes in other countries, created by that panderer Smith out of NJ. Some protection - huh.

I never disrespected the law or the courts, but I do now! It is well earned.

Gee, I only need one weighing factor to tell sh-t from sh-n-la, not the many factors created out of thin air in the mental midget minds of our Supreme baboons in black pajamas. (I know this was not PC, but I really don't care).

Posted by: albeed | Mar 6, 2018 5:49:12 AM

To a certain extent, I think we need to get back to first principles---for crimes committed prior to SORNA, there is an ex post facto problem--can the state really force people to jump through all these hoops on the pain of criminal conviction when these hoops weren't part of the original criminal judgment?

With respect to non ex post facto cases--can failure to advise the state as to one's whereabouts (when one is not on parole) be a crime?

Posted by: federalist | Mar 6, 2018 7:05:09 AM

Like all sex crimes, it is assumed that my son could someday commit another sex crime, (Non-contact in his case).
My son is serving 3 years and does not have to register as a sex offender when he is released. But wait! MAYBE he doesn't have to register, maybe he does. It depends on what state he will be living in. There are so many state statutes to consider that it makes one's head spin trying to find a state that won't try to get him on the registry.
I used to fly the flag. For 4 years now I have not displayed our flag. It has been disposed of....I am ashamed of our country.

Posted by: tommyc | Mar 6, 2018 8:11:57 AM


To your second issue, while I think that is included, it is also immensely more byzantine and convoluted than that. While failing to update one's residence certainly qualifies as a failure to register offense, there are a dizzying array of other prohibitions and restrictions that are lesser known, as well as minor changes in information that must be updated within hyper-technical timeframes (usually in person) or else risk a new felony charge. Louisiana, I believe, is a state where you must report in person if your facial hair changes.

All that is well and good enough if the person on the registry is just the type to reside and work in one state and do no travel. Once you add interstate travel (or even intrastate travel, if the state in question has no field preemption on SORNA laws) into the mix, then the person has to comply with the laws in whatever states that they travel through, or else risk state and / or federal prosecution.

And the complexity of these pieces of statehouse legislation balloons every year, thus making understanding exactly what is required difficult for your average individual on the registry (much less judges and lawyers).

So certainly not that I disagree with your second point, but I wanted to try to illustrate that the issue is somewhat more complicated than a matter of updating ones whereabouts.

Posted by: Guy Hamilton-Smith | Mar 6, 2018 8:49:05 AM

These registries actually can put both the general public and law enforcement personnel to extra needless risk to their own safety.

If imposing double jeopardy on ex-sex offenders causes them to want to seek vengeance against these particular laws, they might take it out on law enforcement in a number of ways. Some defendants in these cases have pulled guns on prosecutors and judges during trials. Some have made bomb and death threats to police stations that have registries inside their offices as once had happened in Savannah, GA.

In another scenario, where a police or parole officer enforces a Halloween law that requires former offenders to turn out their home's lights and to stay inside might encounter a former sex offender who either mistakes that officer for a vigilante or burglar and, as a result, decides to shoot the officer using the "stand your ground" or "home as one's castle" rule. Another scenario might involve a vengeful former sex offender who decides to booby-trap his or her house with the intention of killing or maiming any officer who attempts to seek entry.

These dangers to law enforcement and to the general public that these laws can cause outweighs any contribution they may or may not make to public safety.

In some cases, a former sex offender might decide to steal city property as in one case where a former sex offender stole a municipal street-sweeper vehicle on a joy ride.

In Minnesota, a former sex offender was arrested for making bomb threats against a shopping mob as a way of venting his anger over the sex offender registry laws.

Posted by: william r. delzell | Mar 6, 2018 9:38:37 AM


Your simple but ignorant consideration of whether SORNA was applicable at the time of the crime can be forgiven. New SORNA laws and restrictions which differ across numerous US jurisdictions have been created (and continue to be created - International Megan's Law for example) where no demonstrable safety measure was able to be provided by the government to the few cases where the court requested it. As stated, the laws are truly vindictive in nature only. Remember that the same laws apply in almost all states to the "real" pedophile, the forcible serial rapist and somebody who "necked" with a a minor (they use the all inclusive term children and/or violent for those under 18 in most states), or were enticed and deceived by a cop on the internet. The "severity" of the actual crime doesn't matter.

When case law is determined by the worst of the worst, and done deliberately so, we have real problems in this country.

Posted by: albeed | Mar 6, 2018 10:45:25 AM

What happens if former sex offenders decide to band together as other oppressed groups like blacks, blue-collar workers, gays/lesbians, Chicanos/Chicanas, et al. have done to stand up for their rights? By relegating former sex offenders to restricted areas, they take advantage of this relocation to plot against the politicians and officials who passed Megan Law and other post-conviction restrictions on them. Do politicians really expect former sex offenders to continue suffering in silence? We said that once about blacks in northern ghettos who had endured police brutality and other forms of racism only to finally rise up during the race riots of 1965 onward.

Posted by: william r. delzell | Mar 8, 2018 9:30:40 AM

william r. delzell | Mar 8, 2018 9:30:40 AM:

I am confident that people are retaliating against the Registries every single day. Any family that is listed on one should structure their lives in such a way that legal retaliation is a given and natural recurrence. It is trivial to have a good life and retaliate every day. It is trivial to neutralize any benefit the Registries could conceivably have. Every listed family should do that of course.

I don't think it is necessary at all for Registered people to band together in order to effectively retaliate. In fact, I expect most of the best retaliation is done by lone wolves. Registered people are banded together to take political and legal action. It is not needed as much for other action.

America could use a great "super" Registry of all the scumbag terrorists and entities that support the Registries. People need to know who the un-Americans are and punish them as much as possible. Terrorists and businesses that support the Registries should be punished and avoided always. The super Registry could also keep track of all the crimes that have occurred because of the Registries. You mentioned some of them in your other post. There are children dead because of the Registries. A couple of them are Christopher Barrios (dead at 6) and Melinda Hinson (dead at 13). The Registries murdered them. I'm sure there are more.

Posted by: FRegistryTerrorists | Mar 12, 2018 11:27:44 AM

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