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April 27, 2023

"Rights Violations as Punishment"

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

Is punishment generally exempt from the Constitution?  That is, can the deprivation of basic constitutional rights — such as the rights to marry, bear children, worship, consult a lawyer, and protest — be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment?  On one hand, such state intrusion on fundamental rights would seem unconstitutional.  On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison.  If a judge can sentence someone to life in prison, how can a judge not also have the power to strip someone of the right to marry, or speak, as direct punishment? 

Surprisingly, as this Article reveals, existing law offers no coherent explanation as to why rights-violating punishments somehow escape traditional constitutional scrutiny.  Yet the question is critical as courts — often in the name of decarceration — increasingly impose non-carceral punishments that deprive people of constitutional rights.

April 27, 2023 at 11:26 PM | Permalink


RSO "civil" burdens are often, in my view, criminal punishments.

Posted by: federalist | Apr 28, 2023 9:58:02 AM

Federalist and I agree on this one.

The majority of sex offender laws across this country are beyond punitive, and in many states, they are only getting worse. And here, I am referring to
non-violent RSO's (i.e., registered sex offenders who did NOT commit or attempt to commit a 'hands-on contact offense' - e.g., possession of child porn).

I understand that Florida will soon be considering a bill that proposes to mandate vehicle license plates of RSO's to be bright neon-green in color, so that such citizens will be 'easily identifiable' as they travel in their cars. Imagine if their son, daughter, wife, etc. had to drive the car in an emergency, or to go to the doctor, to school, to work, etc. Think that they may become the target of some whacked-out vigilante? What sense does this make? Like shingles, politicians do not care.

Yes, the burdens are indeed 'criminal punishment' in nature, and to say otherwise, is just plain horse dung.

Posted by: SG | Apr 29, 2023 9:14:32 AM

I think the First Amendment would prohibit this--at least for convictions occurring before this law was enacted.

Don't register an email with the government, go to jail for 25 years. I get it that RSOs are often the scum of the earth, but there's that whole nation of laws thing.

Posted by: federalist | May 1, 2023 12:16:49 PM

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