Still Punitive After All These Years

It was 2016 when the 6th Circuit uttered the magic word that was never to be said. Sex offender registration was “punitive.” To be sure, this came as no epiphany to anyone remotely familiar with SORA, whether because they were on it, dealt with it or read anything modestly thoughtful about it. But that a federal circuit court said it? That was huge.

So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. (Emphasis added.)

Yet, two years after this decision, holding Michigan’s retroactive inclusion on the registry an unconstitutional ex post facto law, the problem is solved? Not quite.

“What is very clear is that Michigan cannot enforce the current (Sex Offender Registry) statute,” says Miriam Aukerman, a senior staff attorney with the ACLU of Michigan. “It was found unconstitutional, and the practical reality is that the state hasn’t come into compliance with the court’s decision.”

MIchigan, like other states, is suddenly interested in criminal law reforms. That’s nice. But given that it’s already been told that its sex offender registry is punitive, is unconstitutional, one would think that would be on the reform agenda. They have to, yet haven’t yet, “fixed”it, but more importantly, this is the opportunity to scrap this misbegotten notion altogether.

The ACLU argues that sex offender registries are an ineffective approach to protecting the public, and that they divert police attention and resources from monitoring the most serious offenders.

In many cases, those who land on the list for life were convicted decades ago, and remain branded as a sex offender regardless of whether they are an actual threat. Others were teens who were convicted of consensual sex with younger teens.

Michigan’s offender registry is open to the public, and that kind of widespread shaming hampers these individuals from getting jobs and rebuilding their lives. Aukerman says it’s a form of lifetime parole, because those on the registry are required to alert police even when they get a new email address or phone number.

The list of people on the registry runs the gamut of sublime to ridiculous, but goes particularly heavy on ridiculous. Get caught peeing outside? Sex offender. Teens sexting each other? Sex offender. Young love? Don’t even go there.

But even those whom people assume to be “serious” problems aren’t what people think, or to be more accurate, fear.

Clearly, the state has an interest in protecting the public from potentially dangerous individuals.

There they are, the words of assumption that so many people accept because it just makes sense to them. “Potentially dangerous individuals”? If they committed a sex offense once, aren’t they likely to do it again? Putting aside the fact of the exceptionally low recidivism rate (Sorry, Justice Kennedy), this “common sense” belief has driven people to blindly accept the premise that these “potentially dangerous individuals” need to be exiled to the netherworld of the registry.

But it’s punitive. Do we put “potentially dangerous individuals” in prison before they do something terrible just to make sure? Some people wouldn’t have much of a problem with that, at least when it comes to their image of the sick perv in the white van offering candy to little girls, but not only is that not the reality of the Sex Offender Registry, but not the reality of sex offenses.

If you want to protect your child from sexual molestation, don’t let Uncle Ernie babysit. The “bad” offenses that people think about when it comes to sex offenses are almost invariably committed to relatives or close friends, people inside the family. The “stranger danger” perception is popular and false. Yet, this is what drives people to believe that the Sex Offender Registry will somehow protected their beloved kids from rape.

What it does is create an underclass of people who did something wrong, even if its either trivial or not remotely close to what you have in your head when it comes to a sex offense, and makes it impossible to move forward and lead productive lives. The burdens of compliance with the registry are so absurd and, in many instances, impossible to comply with that people end up violating them for lack of any alternative. If people who have “paid their debt to society” can’t go forward to leading productive lives, can’t find a lawful place to live, what are they supposed to do with themselves?

Of course Michigan has to address the unconstitutionality of its piling on retroactive demands for people on the Sex Offender Registry, and the court should have shut the damn thing down immediately if they’ve failed to conform to the Constitution. But it’s punitive. Punitive. And it’s a worthless exercise in ignorant assumption that serves no end other than to destroy lives and give people who assume too much and think too little the false comfort of thinking they’ve somehow protect their kids.

No one is saved. Many are harmed. End the sex offender registry. It may have seemed like a good idea at the time, but it wasn’t. We know better now. End it.

15 thoughts on “Still Punitive After All These Years

  1. B. McLeod

    Because these registries have been made accessible to the public, it may well be impossible to “end” them, except prospectively (i.e., by discontinuing new registrations). Even if official sanction for the registries is withdrawn, and restrictions on residence removed, it is likely that private market forces will both pick up and periodically update the existing registry information, because it will always be marketable.

    1. PseudonymousKid

      Comrade, you’re right on. There’s money to be made preying on irrational fears. Luckily the private sector isn’t the big bad government, right? Frying pan, fryer. That is until someone tries to fix it with a law banning private registries. That will be fun.

      1. Fubar

        Registration — the new paradigm
        To prevent all potential thoughtcrime.
        Anyone with a brain
        Is required to explain
        Where they are, what they do — all the time!

    2. SHG Post author

      It’s not just about the registry you see online, but the broad restrictions that go with them limiting nearly every facet of life. Even if a private party picks up the slack (as with mugshots), it will be far better than the current situation.

      1. B. McLeod

        Better, yes, but the stigma will likely be indelible for any registrant who has ever been on any of these registries.

  2. Ahaz01

    End it?! We all believe that lists keep us safe. Sex offender registries, terrorist watch lists, gang member lists, no fly lists, we love them! it gives our law makers and public the feeling that they are doing something proactive….its a feel good action that accomplishes nothing except punish those on them.

    1. SHG Post author

      It’s the old syllogism:

      We need to do something.
      This is something.
      We need to do this.

      What could go wrong?

  3. Jason

    I suspect that many politicians may privately agree with you, but who wants to be seen as being “soft” on sex crimes? Have any legislators found themselves Persky’d for arguing against sex offender registries? (Honest question, I don’t know the answer).

  4. Dustin

    I have a hard time believing that judges and legislators are really that stupid to think the registry is regulatory. To say it’s not punitive simply because it was never intended to be (the usual response) is like saying the Rams got the Lombardi trophy today because they never intended to lose the Super Bowl. I would even give the benefit of the doubt to Doe v. Alaska’s reasoning at the time because 99+% of residence, presence, and employment restrictions and additional registration requirements that make the registry punitive now weren’t in existence at the time. Many states and counties have added additional notification requirements to basically jam the registry in people’s faces because not very many pay much attention to it anymore, knowing full well that most people on it are CURRENTLY HARMLESS.

    I hate buying into conspiracy theory, but can’t help wondering what conversations go on behind closed doors in legislatures and chambers in higher courts. They know full well the registry and everything attached to it is arguably the most unconstitutional scheme the government has ever devised. Yet they won’t abolish it due to the politics of the moment.

    Not to mention the fact that it has become an industry in and of itself. LE budgets are set and grants given based in whole or in part of the size of its registry, leading most LE offices and states to bloat it as much as possible (see Florida; 70k+ on its registry, and over half are dead, incarcerated, or have left the state). Some sheriffs have privatized their registries to, who apparently charges by number of registrants.

    Money and politics is what’s keeping the registry around. The very legislators who have and continue to use it for grandstanding will eventually choke that golden goose. As more people are affected, they see what a truly useless and wasteful article it actually is and will campaign against it. Private enterprise may take over, but one or two good lawsuits will take care of them. It probably won’t be in my lifetime, but it will be sooner or later.

    1. SHG Post author

      Bear in mind that you’re not selling anyone here. We’re criminal defense lawyers, not the public, not legislators. Save the pitch for those who need convincing.

  5. Ian Abdul-Salaam

    The registry has fucked my whole life up…im currently facing my 5th felony failure to register charge…i was originaly sentenced to 6 years and i did EVERY day of that 6 years…i was 18 with a 14 yo girlfriend and shit went sour, i sat in Philadelphia county jail for 2 1/2 years awaiting trial because alleged “victim” and her family refused to show up in court…The 1st District Attorney was taken off the case because she wouldnt stop harassing the girl and her family (even threatened to send THEM to jail) The second DA was even worse, after about 3 trial dates where the witness didnt show…i had what was called a “must be Tried” which means if they dont show my charges get thrown out…they were forced into court…so check this out…it was a Pennsyvania Charge and the Girl moved to NJ…somehow Jersey State Troopers were sent to her house the morning of of my trial date and put her and her family in a car and turned them over to Philadelphia Police where they were then forced into court…i had a paid attorney who lied through his fucking teeth and told me if i dont “take the plea bargain” i will get between 10 and 20 years…meanwhile they were upstairs in the courtroom telling the the court how they aint testifying and that the matter has gone way too far etc. i was 20 years old, ignorant of the law and scared to death so i plead out…long story short i did my time in SCI Greene which is PA highest security state prison and survived…i came back to society trying to make a decent life for myself and the registration bullshit has destroyed that, because the charge was felony im required to register for life according to PA law… 17 years later and my life is a Living Hell…im 35 now and cant keep a stable roof over my head, mainly because i have to register i cant find a place to live…im once again a fugitive on the run facing my 5th felony conviction for failure to register…ive done more prison time over failure to register than the original sentence which is bullshit…all ive done since that fucked up time in my life is live a normal healthy life which has been made completely impossible because of registration laws…ive lost jobs, housing, girlfriends, even friends because of it…im not no weird dude, im pretty fucking normal and if you ever met me and saw me the last thing you would ever think is “registered sex offender” Ive been prejudiced against and forced to live on the fringes of society because of it…ive been “Gang Stalked”…ive been homeless living in abandoned house because of it…cant get custody of my 5 year old son who is in foster care because of it…cant even see my little dude…ive had neighbors look at me funny and talk shit about me to other people because of it…this dumb ass irrational law has been the single handed factor of my so called “destruction” you see its a slow tortuous death designed to make you give up hope/kill yourself from grief…it is VERY punitive fuck what they are talking about…it doesnt do ANYTHING for public safety…it turns one into a social leper/pariah…if you are subject to this law you WILL feel a certain type of pain inside that no one else who hasnt been there would know anything about…imagine always knowing everything you have tried to build for yourself constantly gets destroyed everytime your almost where you need to be in life,do you know how many times i had to explain this to potential landlords/employers/girlfriends and was totally denied because of it? i hope they get rid of this fucked up law and declare it unconstitutional…i hope i can sue the shit out of the system for violating my rights for so long but of course they will find a way to not allow it to happen…there are certain sick people out there who are real predators and should be treated as such, but not a dumb immature 18 year old kid…im the victim in this matter but i keep on pushing and still strive for something better…

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