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March 12, 2022

"Card Carrying Sex Offenders"

The title of this post is the title of this new paper authored by Wayne Logan now available via SSRN.  Here is its abstract:

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

March 12, 2022 at 12:53 PM | Permalink

Comments

This must be the 10,000th study in which the ultimate finding is that compelled disclosure of sex offender status is antithetical to successful rehabilitation and reintegration of offenders back into the community. Successful rehabilitation equates to significant decreases in re-offending which SHOULD be the goal of all members of society, in spite of many people’s strong emotions/ moral outrage. The specious and contrived argument that public shaming is not “punishment” only serves those dedicated to the belief that all offenders are not deserving of basic human dignity and the protections guaranteed thru our nation’s constitution. “The shame is on the other side”.

Posted by: Drug Cnslr | Mar 12, 2022 1:44:44 PM

The government could just allow people to identify as non-offenders on their ID card (and presume they opted into this if eligible). Would be hard to successfully challenge what would technically be a voluntary certificate of not being a sex offender.

Posted by: Jason | Mar 12, 2022 1:47:28 PM

This is a bit like the discussion of the ACCA on another post. In principle, it seems like a good idea to protect the community from sexual predators. Who could be against that? But some of the offenses that trigger this status are marginal, at best.

I think it would be tough to invalidate these sanctions as a matter of Constitutional law. As a matter of policy, they are likely over-done and not helpful.

Posted by: Marc Shepherd | Mar 13, 2022 12:47:52 PM

I would love to hear someone articulate why they believe that a public sex offender registry somehow protects society. Has there ever been an example of a sexual offense being prevented as a direct result of publicly disclosing the status of a person previously convicted of a sex offense? Ever?

Posted by: Drug Cnslr | Mar 13, 2022 7:24:49 PM

Statically, very few sex offenders are prosecuted. And some of the crimes are what I characterize as young love. Seems strange having a "Scarlet Letter" used to identify a person's crime. If this a good rational to protect society, shouldn't all persons who have served time be identified. The Epstein mess is an example of how strange our outrage works.

retiree

Posted by: ilene marsch | Mar 14, 2022 4:03:40 PM

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