It’s Not Punishment If It’s Regulatory

Via Doug Berman by way of Howard Bashman from the Atlanta Journal-Constitution (whew), the Georgia Supreme Court upheld sex offender registration for people convicted of non-sex related offenses in Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

No consequence?  It’s likely of a great deal of consequence to anyone who’s required to comply with the SORA requirements, not to mention be held out to the world, and more importantly his neighbors, as a sex offender when he isn’t.

Once again, legal fiction overtakes reality.  By calling sex offender registration regulatory rather than punitive, the court was able to sidestep the issue and pretend that something which is patently punitive is benignly regulatory.  It’s a miracle, like calling a forfeiture civil and thus removing all the rights that go along with criminal sanctions. 

This detail did not go unnoticed in the dissent:

Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, “it is no mere administrative formality or minor inconvenience.” Hunstein added that an offender who commits a sex crime while kidnapping or falsely imprisoning a victim “would clearly be covered” by other provisions of the registry law.
Unfortunately, the Chief Justice obviously lacked the ability to sway the majority and, perhaps in an effort to avoid being seen as overly brazen, was somewhat underwhelming in her criticism.  To say it is “no mere administrative formality” hardly clarifies the impact of being placed on a list of the most hated people in this nation, forbidden from living in most places, largely incapable of obtaining lawful employment, tainted for years if not life as someone to be reviled.  No mere inconvenience indeed.

The problem isn’t so much the legal analysis, as the willingness of courts to ignore the punitive aspect of legislation by defining down the obvious impact, or simply ignoring it altogether, and pigeon-holing laws to avoid acknowledging the punitive consequences.  Without regard to how one feels about real sex offenders, the point here is that the law swallows non-sex-offenders whole, reducing whatever rationale existed for its inception to a farce.  If they aren’t “really” sex offenders, than what justification is there for including them on a sex-offender registry?  Instead, the court considers the law from the far side, where it concludes that since inclusion in the registry is “merely regulatory,” it need not consider whether the rationale justifies the rubric.

Should this trend continue, and states come to realize that they can get plenty of mileage out of increasing the inclusion of people convicted of general crimes in sex offender registries, this could be the growth segment of political grandstanding for the future.  After all, so what if jaywalkers are included in the sex offender registry.  It’s only regulatory.