It’s bad enough, both for substantive as well as factual reasons, that the Supreme Court in Smith v. Doe held that sex offender registration was not punitive, but civil, and therefore beyond the reach of the Ex Post Facto Clause. Not only was it grounded in utterly baseless statistics of recidivism, but it indulged in the fantasy that rhetoric was an adequate substitute for inquiry before destroying the future of an entire class of people.
In other words, this categorical group known as “sex offenders” was so deserving of a life of misery, prohibition and shunning for the putative safety of the community that there was a rational basis for civil rules to make them societal outcasts. Where they can live, work, exist for decades, if not the rest of their lives, was constrained to the point of impossibility. And should they mess up compliance with any detail, back they go to prison.
But it’s not criminal. It’s civil. For no better reason than legislatures say it’s not punitive, but for the safety of the children, Even though it’s punitive. Extremely punitive.
Arizona wants to take this further. Paul Cassell wants to help.
The Supreme Court will soon consider whether to grant a certiorari petition filed by Arizona, which involves a voter-approved amendment to the Arizona Constitution rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a 4-3 divided opinion, the Arizona Supreme Court concluded that this amendment was unconstitutional. Arizona has sought review of that decision.
Along with counsel of record Allyson Ho and her colleagues at Gibson, Dunn & Crutcher and Steve Twist at Arizona Voice for Crime Victims, I have filed an amicus brief urging the Court to grant review. Our brief argues that nothing in the Constitution prohibits the States from empowering trial courts to protect crime victims by denying defendants bail when—as determined by a trial judge after a full and fair adversarial process—the proof is evident that the defendant committed a sexually violent offense.
What might catch an eye immediately is the conflict between the “categorical ineligibility” for bail and the “full and fair adversarial process.” The apparent key to Cassell’s argument is whether “the proof is evident or the presumption great.” Bear in mind, this is at the stage of arrest, before discovery, before motions, before trial. There is no proof, but only accusations.
As for “the presumption great,” we already have one: the presumption of innocence.
The Arizona Supreme Court struck this provision down as an unconstitutional deprivation of due process. Due process, the court held, requires an individualized determination of dangerousness unless the crime charged “inherently demonstrates that the accused will pose an unmanageable risk of danger if released pending trial.”
Under Arizona law, risk of danger to the community provides a reason to deny bail, but as the Supreme Court held, that must be determined individually, based on the specifics of any given accusation and the individual charged. Under the categorical approach promoted by Cassell, the only question is whether the categorical accusations are sufficient.
[The law] is facially unconstitutional because it categorically prohibits bail without regard for individual circumstances. [It] does not provide any procedures to determine whether a person charged with sexual assault would pose a danger if granted pre-trial release. A court’s finding that the proof is evident or the presumption great only shows a likelihood that an accused committed the charged sexual assault. It does not address the likelihood that an accused would commit a new sexual assault or other dangerous crime if released pending trial….
In order to obtain release, the accused would apparently be compelled to disprove the accusations. Not at trial, but just to be considered for bail. It’s not merely a presumption of guilt, with the burden shifted onto the defendant to disprove his guilt, but one that imposes the burden on a singular group, sex offenders, because they are now the most dreaded and hated in society.
Sex offenders today are what drug dealers were during the crack epidemic, or black teens during the Superpredator panic. There is no empathy left for them, but worse still, they are painted as so deplorable and irredeemable that they are unworthy of the rules, the safeguards, we otherwise apply to everyone. Sure, it’s wrong, but so what, we hate them so very much.
As David Post writes in response to Cassell:
They are – all of them – presumed innocent until the State has persuaded a jury of their peers, beyond a reasonable doubt, that they are guilty as charged.
So, too, for persons charged with sex crimes, no matter how heinous.
If this seems too clear, too obvious, it’s because this is a fundamental tenet of our jurisprudence, our choice to presume innocence rather than guilt of the accused. Yet today’s bogeymen, sex offenders, are the acceptable carve out from the rest of society, from the accused. They are this moment’s blight on society, the exception to the rules by which society has determined to function.
Cassell, in his effort to denigrate this category, relies on Justice Kennedy’s grievous error of relying on false recidivism statistics to distinguish sex offenders from all other “criminals.”
Although the Supreme Court did indeed declare back in 2003 that the recidivism risk for sex offenders is “frightening and high” – “estimated to be as high as 80%,” in Justice Kennedy’s words – that turns out (as Ira and Tara Ellman have convincingly demonstrated here) to have been based upon no actual evidence whatsoever, having been derived from a single, unsupported, and entirely uncorroborated sentence in a 1986 article in Psychology Today. [Jacob Sullum, here at Reason.com, discusses the remarkable and damaging persistence of this “frightening and high factoid” in his article here; see also Adam Liptak’s NY Times article “Did the Supreme Court Base a Ruling on a Myth?“]. As Sullum puts it, “even if you think Arizona’s bail ban is good policy (or at least constitutional), you should be troubled by the continued judicial reliance on repeatedly refuted claims about sex offenders that were erroneously endorsed by the Supreme Court 16 years ago.”
But for those who want to believe, it creates a hook to grab and believers won’t let go for dear life, much as the Title IX advocates are fighting desperately to find any rationalization to attack due process on campus, and as #MeToo advocates cry for their flavor of “mob justice.”
First, we vilify a group of people because they are the most hated of the day. Then we carve out exceptions to the rules that apply to everyone, except our most hated, Then we vilify those rules, the same ones we adored and relied upon for others, since there is no principled way to justify depriving them to one group and not another, unless the rules themselves create the evil that allows the most hated to avoid the consequences the unduly passionate demand be imposed.
Then we wait for a generation or so to grieve over the errors of our ways again, and ponder how we could have been so blind and foolish to repeat the same mistake. And yet, we keep doing so because there is always some category so vile and despised that it’s unworthy of fairness.