Via Michael Cicchini at his new criminal law blawg,  The Legal Watchdog, provides an ugly view into the rationale of the Wisconsin Supreme Court when it comes to determining who, and why, someone is a sex offender.

For each violent rapist, a registry may contain dozens of teenagers who had consensual sex with younger teens, and dozens of other teens who were convicted of “sexting,” urinating in public, or similar behavior .  But, perhaps the biggest problem with sex offender registries is that they’re not just for sex-related crimes anymore.
         

An excellent example of this trend can be found in the Wisconsin case of State v. Smith, where Smith, a 17-year-old boy, made another 17-year-old boy go with him to collect a debt.  Smith was convicted of felony false imprisonment for this behavior and, because his “prisoner” was a minor, the state forced Smith to register as a sex offender. 

Smith failed to register as a sex offender, making the mistaken assumption that since he wasn’t a sex offender, it didn’t apply to him.  How naive can you get?  When prosecuted for his failure, Smith challenged the registration law as unconstitutional as applied. 

The Wisconsin Supreme Court rejected the argument, holding that Smith failed to “prove that the statute is unconstitutional beyond a reasonable doubt.”   How one proves an argument beyond a reasonable doubt, a standard that applies poorly to facts and not at all to law, remains a Wisconsin mystery, much like Friday night fish fries and the love of polkas.  But I digress.  Smith’s argument was subject to rational basis analysis.

[R]equiring Smith to register as a sex offender is rationally related to the state’s legitimate interest in protecting the public, including children, and assisting law enforcement. Requiring Smith to register, even though his conviction for false imprisonment was not of a sexual nature, is rationally related to the government interest in protecting the public and assisting law enforcement because:

(1) false imprisonment has been linked to the commission of sexual assault and violent crimes against children;

(2) an offender’s sexual motive or intent may be difficult to prove or determine within the context of false imprisonment; and

(3) false imprisonment places the minor in a vulnerable position because the offender, rather than the minor, has control over the minor’s body and freedom of movement.

Of critical importance is that the court did not hold that the purpose of the sex offender registry is in any way directly related to sex, but rather “protecting the public and assisting law enforcement.”  That pretty much covers everything in the world, except releasing Brett Favre when he still had life in his arm.

By decoupling sex from the sex offender registry, there’s no rational end to where legislatures can go.  It’s invariably in the interest of protecting the public and, my personal favorite concern, assisting law enforcement to keep tabs on every person ever convicted of anything, anywhere, any time.  It’s like an “easy button” for law enforcement, and seriously, wouldn’t that make cops’ lives easier?

In dissent, Justice Ann Walsh Bradley points out some problems.

Two essential errors drive the majority’s analysis. First, the majority fails to carefully define the purpose of the statute. Its broad statement of the statutory purpose evinces an unwillingness to provide meaningful review. Second, the majority mischaracterizes Smith’s challenge. In so doing, the majority blurs the distinction between facial and as-applied challenges and ducks the constitutional challenge that is the subject of this appeal.

As a result of these errors, the majority abdicates its responsibility to determine whether there is a rational basis for requiring Smith to register as a sex offender. Contrary to the majority, when I examine the legislative purpose behind the sex offender registry, I conclude that there is no rational basis for making Smith register as a sex offender when everybody acknowledges that there was nothing sexual about his offense.

Shocking in its simplicity, Justice Bradley goes right to the heart of the matter.  There’s a reason it’s called the Sex Offender Registry.  The rationale that permits its existence is predicated upon its being related to sex offenses, even though that rationale suffers from some massive inherent flaws since not all offense that can be legitimately characterized as bearing any connection to sexual conduct suffer from the recidivism dilemma that was used to justify perpetual oversight and control. 

But when the explanation for putting a 17 year old kid on the registry requires a court to find justification in something so broad, so vague, so utterly unjustifiable, as “assisting law enforcement,” there can be no denying that these registries have been reduced to a farce.  Perhaps a better name than sex offender registries would be census, as the underlying rationale would, with only the most minor extension, apply with equal force to the heinous illegal parker.  Heck, it would apply to the most law-abiding guy in Kenosha County, since no one would expect him to go bad, and he could do a ton of harm without police scrutiny.  If that’s not a good reason to keep an eye on his whereabouts, I’ll eat my cheesehead.

As the dissent notes, an as-applied challenge provides an opportunity for the court to determine whether those attenuated “links” between non-sexual criminal conduct and any potential to commit an inchoate sex offense exists.  If not, under any meaningful logic, then the court has the power to conclude that the registration requirement as applied to this particular individual, is arbitrary, and therefore unconstitutional.

But that would take a lot of work, considering each defendant individually, and would undermine the legislative scheme of making sure that law enforcement is assisted at every turn.  As I learned in Milwaukee, in heaven there is no beer.  And in Brown County, Wisconsin, there’s a 17 year old kid on the sex offender registry because a majority of judges on the State Supreme Court couldn’t be bothered thinking too hard.