Of the many legal fictions enjoyed by judges, few have done as much damage to as many people as calling sex offender registries “regulatory.” The trick is that if it’s characterized as regulatory, then it’s not punitive. And if it’s punitive, then it opens a whole slew of constitutional rights that would render the concept unlawful. But if legislators squint and write the “r” word instead of the “p” word, and judges squint and agree, problem solved!
To see this game in action, we need only take a quick stroll down memory lane to 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….
See what Judge Melton did there?
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.
The issue wasn’t resolved by looking to elements, legal tests or impact. It was just a word. By the mere incantation of the word “regulatory,” the bundle of rights that accompany the imposition of criminal punishment disappear. Lest one blame Judge Melton for willful blindness, it’s not just him or his court. Not by a long shot.
The Sixth Circuit is the first court to hold otherwise. Finally.
The Sixth Circuit Court of Appeals has ruled in Doe v. Snyder that Michigan may not apply amendments to the State’s Sex Offender Registration Act retroactively on people who were convicted of crimes years or decades ago.
To make the point clear, Andrew Fleischman offers an analogy:
Imagine for a moment that you pleaded guilty to a crime five years ago. Sexual battery. You’ve finished your sentence and are out living your life. It was a regrettable incident that you’re happy to put behind you. Then the State decides you haven’t been punished enough. They pass a new law that requires you to spend an additional 12 minutes in jail in the next week.
The law, properly, holds incarceration to be punitive. Whether it’s 12 minutes or 12 years, they can’t create an ex post facto law to impose additional punishment. Because Constitution. And yet:
Now let’s say you were convicted of the same crime five years ago. The State decides that you need to tell everyone you know that you were convicted of that crime. That you can’t live within a thousand feet of a school. That your name and address have to be up on a website, notifying people of your status. That you have to report, regularly, and in person to make sure you are in compliance with all these provisions.
Unconstitutional? The Sixth Circuit Court of Appeals is the first federal circuit court to say so. Every other federal court that has looked at the issue has ruled that registries simply exist to keep the community safe and keep an eye on potentially dangerous predators. Because the law isn’t punitive, governments can impose new requirements retroactively and at will.
Proponents of sex offender registries, who still adhere to the theory upon the creation of sex offender registries, that people have the right to know whether some sick, disgusting pedophile perv is living next door to them who will break into their house in the middle of the night and rape their children, will remind us of the horrible crimes committed against children. The emotional appeal is strong here, as no one wants to see another Etan Patz happen.
But there are a few problems when one gets past the initial appeal to emotion and takes a cursory glance at the details. First, sex offender registries have failed to live up to the theory. They don’t serve to prevent the wrong they exist to stop, largely because the theory was predicated upon a false assumption, that sex offenders couldn’t control their horrific impulses and would offend again. As it turns out, that’s not only untrue, but directly contrary to empirical evidence.
The next problem is mission creep, where the sex offender law was conceived as a means of regulating the people who were so horrible that the threat of their being amongst “good people” was too much to bear. But then new offenses kept being added to the list, like public urination, which had nothing to do with sex offenses. And new restrictions kept being added, making it difficult, if not impossible, for anyone on the list to work, live, be educated, have any future as a law-abiding citizen.
And the public didn’t give a damn, because everybody hates sex offenders so screw ’em. So what if the only place they could live was under a bridge? So what if we created a permanent underclass? What if their families, children were doomed to lives of misery along with the sex offender? We hate them. Who cares?
The Sixth Circuit, apparently, cares. While the holding remains limited to the case, that the court uttered the “p” word is a huge shift. It’s not easy to reach the “p” word when everyone else says it’s the “r” word.
And it is insanely difficult to prove that a law is punitive. Unless a legislature decides to title a law the “Retroactive Punishment of Child Molesters Statute,” the Supreme Court of the United State has held in Smith v. Doe that the plaintiff requires the “clearest proof” that the registry is punitive to prevail.
Up to now, no one has been able to meet that “clearest proof” burden to get the Supremes to concede that the sun rises in the east and sex offender registries are punitive.
There may come a time, soon, when we are willing to call sex offender registries what they are: Severe, life-long punishment. If it is merited, so be it. But the least we can provide is a little honesty—an acknowledgment that when we add someone to the list, we forever change them from a citizen to something lower, baser, and unprotected from the prevailing winds of public opinion.
Maybe this decision will be the crack needed to get the Supreme Court to finally say what’s obvious to everyone who is familiar with the burdens of being subject to sex offender registry laws. Maybe.