Via CNN, Louisiana has enacted a new law requiring convicted sex offenders and child molesters to wear the scarlet letter:
A new Louisiana law requires sex offenders and child predators to state their criminal status on their Facebook or other social networking page, with the law’s author saying the bill is the first of its kind in the nation.While it’s true that this is the first of its kind to require those convicted of heinous sex offenses, like public urination, to become pariahs in perpetuity on the internet, it’s not the first to compel public shaming. Some states already have laws requiring people convicted of drunk driving to have special plates on their cars so others can hate them for being inchoate murderers.State Rep. Jeff Thompson, a Republican from Bossier City, Louisiana, says his new law, effective August 1, will stand up to constitutional challenge because it expands sex offender registration requirements, common in many states, to include a disclosure on the convicted criminal’s social networking sites as well.
Anybody want to guess how this will affect their friend requests?The law states that sex offenders and child predators “shall include in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics… and his residential address.”
If states hadn’t top-loaded sex offender with such a broad swathe of crimes that have nothing to do with sex offenses, or were truly serious in that they posed a threat to others, perhaps this law, though inherently overbearing, wouldn’t be terribly bothersome. After all, Facebook supports it, and notes it’s terms of service already forbid sex offenders and child molesters from participating. Nobody wants their medium to facilitate harm to children.
But our blind, indiscriminate hatred of sex offenders, makes laws like this simultaneously sympathetic to laymen while overwhelmingly destructive to those of us who are aware of its full breadth. Most people uninvolved in criminal law have no idea how many people are swept into these laws, creating a huge underclass of pariahs who, despite having paid their debt to society, will be forever held out to the public for shame and hatred.
As this underclass continues to grow, without any meaningful recognition by the public of the harm being done, there will eventually be a terrible backlash as there is nowhere for them to live, to work, to play, to exist. And for a society that seeks to end recidivism, what better way to accomplish it than to make sure they can never re-enter society as a law-abiding member and live among us like normal people?
And yet, I suspect that Thompson’s point, that this is a mere extension of sex offender registries, will prevail if and when this law is challenged as unconstitutional. Is there any room for more nails in the coffin? Sadly, I bet there is.
H/T reader Zarin Zhang
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I read that news this morning. Your response is far more eloquent than mine was.
Actually this is far more complex.
The reason for the new law in Louisiana is because the State Supreme Court recently struck down a law barring registrants from all websites. There are first amendment implications. Many publications now require facebook logins to participate in discussions so the discussions “will be more civil” (there’s an anonymous speech complaint to be made to these publications, but whose up for that?)
However, The Terms of Service of facebook specifically and literally prohibit registered sex offenders from using their site. So what the state is doing is under penalty of felony prosecution forcing registrants to point out to facebook that they are registered sex offenders and facebook will immediately disallow their login which achieves the states (useless) objective of keeping them off the site. So the law has the collateral consequence of again interfering with registrants’ free speech anyway.
During the expost facto US Supreme Court oral arguments for Smith vs Doe, the justices brought up the question of whether the registry requires people to “carry the government’s message”. The reason for the question was twofold. The first is that it increases the onerousness. The second, more important reason is that carrying the government’s message is a marker of historical types of punishment. And that’s important because it’s one of the tests of whether the registry is civil or punishment. If its punishment then it is unconstitutional by reason of ex post facto. This would affect all registrants whose crimes were prior to the new laws implementation. Of course good luck fighting that battle, pariahs tend to receive less justice than the rest of society.
This seems a little like the (considered by some) unconstitutional mandate in the health care.
It mandates private behavior. The license plate thing is distinguishable in that the plate actually belongs to the State.
I’ve read instances where an older guy and younger girl (younger than the age of consent) have gotten together, had sex, and then he went to prison for his “crime”. When he got out he married his “victim” whereby they live happily together, many times with children.
Once you’re on these pariah lists it’s very hard to get off. The tyranny of good intentions indeed!
I actually think that you are mistaken that a law like this isolates sex offenders. As you note, the private entities who run social networking sites being scared of legal liability will simply bar sex offenders from registering. Then people who want to communicate with the sex offender cannot do so because it is a nongovernmental blanket ban.
With mandated disclosure of sex offender status, the private enterprizes who run the social networking sites lose their incentive to exclude sex offenders. Thus, I believe if laws like this became standard sex offenders would become less isolated.
Maybe you’re right. We can count their Facebook friends in a year and see how they’re doing. Other sex offenders don’t count.
although it might be punitive ex post facto violation if it can be proving this is the governments intent, isolation is not a strong a legal issue.
The punitive effects of this law by requiring the registrant to spread the governments message violates the ex-post facto clause of the constitution.
The collateral consequences of social networking sites not allowing registrants to use their logins which have been made a requirement to participate in discussions on newspaper web sites and in governmental forums (google facebook town hall obama or facebook town hall rick scott) violates free speech protections.
I’ve generally operated under the assumption that someone that I don’t know trying to contact me through social media is either trying to sell me something or is a sex offender, making this law superfluous for someone like me.
Scott,
It’s interesting that you should mention the issue of meaningful rehabilitation. I often hear Justice Scalia say, during oral argument, that “rehabilitation is no longer a legitimate goal of criminal law.” I have always wondered: why and where is he coming from when he makes that comment?
When I went to law school, which was not too long ago, my textbook mentioned that the three goals of criminal law were retribution, deterrence, and rehabilitation. Has the landscape changed so much, or is Scalia just expressing a somewhat radical view?
Rarely am I asked to explain what goes through Nino’s mind. Many believe that rehab doesn’t work, and no one comes out of prison rehabilitated. There’s some strong support for that view. Of course, the answer isn’t to give up on rehab, but to make prison serve it’s legitimate purpose. Nino took a different path.
As the wife of a convicted sex offender who works in the Criminal Justice arena, I am indefinitely affected because the public, media, and lawmakers who know nothing of criminal law would consider me a Pagan at best if they knew this. Though I am no attorney, just as stated in another comment, one core principal of consequence and punishment I was taught was that rehabilitation is possible.