THE UNCONSTITUTIONAL REALITY OF SEXUAL OFFENDER LAWS FACING INMATES IN STATE PRISON AND BEYOND.
A DISCUSSION ABOUT HOW THESE LAWS DO NOT KEEP US SAFE AND ACTUALLY PUT US ALL AT RISK AND WEAKEN OUR LIBERTIES.
By Sean R. Francis, MS
President, Justice Solutions of America, Inc.
Since the early 1990’s multiple laws have ben enacted in response to the gruesome, yet rare, incidences of child sexual assault and murder. These laws include sex offender registration, resi-dency restrictions and civil commitment statutes. While these laws may have been well intentioned, they have fallen far short of their goals and have trampled the constitutional rights of offenders who have successfully completed their criminal sentences. Furthermore, these laws have created a public hysteria and lynch mob mentality when it comes to anyone with the sex offender label. This paper will show how the public fears regarding sex offenders are unfounded as research conclu-sively shows that sex offenders have a lower rate of recidivism than any other type of criminal of-fender. Furthermore, this paper will argue that sex offender laws make society less safe and threat-en the civil liberties of us all.
Sex offenders are those who stand convicted of certain specific offenses enumerated by statute. In response to these crimes, and the perceived rate of recidivism of these offenders, legisla-tors enacted laws intended to be “regulatory” in nature that would help society and law enforcement track and monitor sex offenders. However, sex offender laws and restrictions have failed in keep-ing society safe and preventing recidivism. Instead, they have weakened constitutional protections and put us all at risk. These laws have been supported by misinformation and a public hysteria about rates of recidivism and the threat these offenders pose to society. Indeed, sex offenders have the lowest rate of recidivism among criminal offenders.
THE HISTORY OF SEX OFFENDER LAWS
The criminal acts that instigated public outrage and fear against these offenders.
On July 27th, 1981 Adam Walsh was in a Southern Florida Sears when he was abducted right under the noses of his parents. About two weeks later Adam’s head was found by fisherman in a local canal. The case remained a mystery for close to thirty years. However, convicted serial killer Otis Toole confessed to the murder and the case was closed. Toole was never convicted of the murder of Walsh and died in prison in 1996. (time.com)
In October of 1989 an 11 year old farm boy named Jacob Wetterling from a rural Minneso-ta road. His death would remain unsolved for the next 27 years. However, in 2016 convicted sex offender Danny Heinrich admitted that he abducted, sexually assaulted and then killed the 11 year old. Shooting him in the head twice. For years Heinrich was a person of interest and denied com-mitting the crime. However, after being charged with federal child pornography violations in 2016 Heinrich struck a plea deal. He would be kept in a safe federal prison to do his time and in return he would accept responsibility for the murder of Jacob and lead police to the body. Heinrich, under the terms of the plea deal, would not be charged with the crime. (washingtonpost.com)
On October 1st, 1993 twelve year old Polly Klass was enjoying a slumber party with friends in her home. Her mother and brother were sleeping just down the hall. Convicted sex of-fender Richard Allan Davis entered Polly’s room and abducted her at knife point. Davis had just been released on parole three months earlier for an attack against a woman. While it was never proven that Davis sexually assaulted Polly he did admit to killing her and dumping her body. (nytimes.com)
In July of 1994 seven year old Megan Kanka went missing from her New Jersey home. About twenty four hours later her body was found dumped in a park near her home. She had been sexually assaulted and murdered by 33 year old Jesse Timmendequas. (time.com) This was not the first time Timmendequas had sexually assaulted children. He had two prior convictions for the sexual assault of girls aged five and seven. (time.com) With Megan, Timmendequas lured her to his home to see a new puppy. He lived right next door to the Kanka family. After her death of their daughter Megan’s family said that, had they knew a sex offender lived next door to them, Megan never would have been allowed to play outside alone.
B. The response of legislators that has resulted in the current laws.
Prior to 1994 and the death of Megan Kanka only a few states mandated that those convict-ed of sexual offenses register their addresses with the local police. (justice.gov) Furthermore, that registration was for law enforcement only and the penalties for non compliance were minor. Me-gan’s death changed all of that and sparked a nationwide outcry. States started to mandate that sex offenders register their addresses with law enforcement. However, the federal government soon got involved which really put teeth and uniformity into these laws.
In 1994 Congress passed the Jacob Wetterling Crimes Against Children and Sexually Vio-lent Predator Act. This was the first federal law addressing sex offenders and it was comprehen-sive. This statute established standards mandating that all states maintain a sex offender registry. This registry was not publicly available, it was for law enforcement only. The act further estab-lished a class of sexual offenders known as “sexually violent predators.” The act also mandated that sex offenders verify their addresses annually unless they were designated as sexually violent predators. For them the address verification was every 90 days. The Wetterling Act further set time limits for registration. Ten years for all offenders except sexually violent offenders, lifetime regis-tration for them.
This would not be the last federal law passed regulating sex offenders. Two years later in 1996 Congress would formally enact Megan’s Law. This law, on the federal level, amended the Wetterling Act and mandated public notification of information related to sexual offenders when it was needed to protect the public. Such information included the name and address of the offender as well as the offenders picture. The federal version of Megan’s Law also allowed information states had collected for registration purposes to be released to the public. It was truly this law that began the public sex offender notification system we have in place to this day.
Also in 1996 Congress passed the Pam Lychner Sexual Offender Tracking and Identifica-tion Act. This act created a database on sexual offenders available only to law enforcement and maintained by the FBI. This is very similar to NCIC or the national crime and information comput-er, a depository for all criminal records in the country maintained by the FBI. The only difference is that this national depository dealt only with sex offenders. The Lyncher Act also mandated states to transmit to the FBI the information of those convicted of sexual offenses and allowed the FBI to disseminate that information to those conducting federal background checks.
In addition to registration and notification laws many communities decided to enact even more regulations and laws designed to regulate sex offenders. It has been estimated that at least 30 states and many communities have passed residence restriction laws on sex offenders. (csom.org) These laws essentially ban sex offenders from living in many locations. Because many of these laws mandate that a convicted sex offender not live with in 1000-2500 feet of any place children congregate, these laws have effectively banished sex offenders from certain cities. (abajournel.com)
Lawmakers in some states also enacted civil commitment statutes in response to the above mentioned crimes. These laws were sold as a measure of last resort for the “worst of the worst” of sexual offenders. Civil commitment allows, after a finding that a sex offender has a mental illness, abnormality or disorder, and that disorder makes the offender dangerous and likely to re-offend, the offender can be committed for care and treatment indefinitely. Kansas v. Hendricks, 521 U.S. 346 (1997). To date twenty states and the federal government have statutes allowing for the civil commitment of sex offenders. (atsa.com)
On July 27th, 2006 President George W. Bush signed the Adam Walsh Child Protection and Safety Act. This sweeping law intensified already existing laws regulating sex offenders. This law expanded the definition of who is considered a sexual offender. It also greatly increased federal penalties for crimes against children. The bill altered the nation wide system of sex offender regis-tration. Making registration longer and designating additional offenders for sex offender registra-tion. This act also established a federal civil commitment scheme for federal sex offenders in the custody of the Federal Bureau of Prisons. (georgebush-whitehouse.archives.gov)
C. Who these laws apply to.
These laws only apply to those who are sexual offenders. A sexual offender is one who is convicted of a sex offense. A sex offense is, at least according to federal law, a criminal offense that has an element involving a sexual act or sexual contact with another; a criminal offense that is a specified offense against a minor; a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18. (34 U.S.C.A. § 20911).
THE LEGAL DECISIONS REGARDING THESE LAWS AND CONSTITUTIONAL CHALLENGES:
A. Challenges to the sex offender registry and the legal result.
These laws represented a new and frightening attempt by legislators to keep society and children in general safe. They imposed severe restrictions on a small group of criminal offender’s that, arguably, imposed indefinite punishment, shaming and banishment. Such restrictions did not apply and had never been implemented against any other type of criminal offender’s. They would not simply be accepted without legal challenge.
The first case to challenge sex offender registration was Smith v. Doe, 538 U.S. 84 (2003). This case tested the retroactive nature of sex offender registration. The plaintiffs argued that retro-active application of sex offender registration violated the Ex Post Facto clause of the Constitution arguing that sex offender registration was punitive. Id. The plaintiffs in this case had been convict-ed of sexual offenses before the act went into effect.
However, the Supreme Court disagreed. In a 6-3 decision the high court held that sex of-fender registrations is merely regulatory and not punitive. Therefore, the Ex Post Facto argument could not succeed. This ruling cleared the way for retroactive application of sex offender registries. Id.
The disclosure of a sex offenders personal information, such as address and picture, after release from prison also was addressed by the Supreme Court. In Connecticut Department of Pub-lic Safety v. Doe, 538 U.S. 1 (2003) the court dealt with the issue of a state making a sex offenders information available to the public on a website. The petitioner in this case argued that the Connect-icut law allowing the dissemination of such information violated the Fourteenth Amendments Due Process Clause. The petitioner argued that Due Process required a hearing before being placed on a public registry. Id.
In a unanimous decision the Supreme Court held that Due Process is not implicated here because there is no liberty interest at stake. Id. Simply an injury to one’s reputation. Furthermore, this was simply a sharing of information that was already public and any process the petitioner was due he got during his criminal trial before a finding of guilt. Id.
B. Challenges to residency restrictions and the legal result.
With residency restrictions came a form of modern day banishment. Those who were con-victed of sexual offenses, in close to thirty states and multiple cities, were excluded from being an-ywhere near where children congregated. (csom.org) Often 1500 to 2500 feet. This in effect ban-ished most sex offenders from many cities. They were unable to find employment or even housing. In a disturbing and public case that showed just how horrible these laws impacted offenders, many Florida sex offenders were forced to live under a bridge due to the severe residency restrictions in place in Miami. (reuters.com).
Initially, many jurisdictions simply turned a blind eye to this form of modern day banish-ment. The Supreme Court has never weighed in on it. However, the courts may be willing to ig-nore this modern day banishment no longer. In New York , California and Massachusetts the states high courts have struck down sex offender residency restrictions as unconstitutional. Recog-nizing the fact that offenders essentially cannot find a home and are banished by these laws the courts are beginning to rule that residency restrictions are unconstitutional.(bostonglobe.com),( usatoday.com ), (latimes.com)
C. Challenges to the multiple terms and conditions placed on paroled sex offenders as well as offenders on probation and the legal result.
Sex offenders sentenced to a term of imprisonment almost always have a term of probation, supervised release or parole after their incarceration is complete. Many times these post-incarceration supervision terms have rules that are tailored to an offenders behavior. If the offender breaks the rules they can be returned to prison. For a sex offender the terms and conditions are of-ten suffocating. Often resulting in return to prison as it is almost impossible to comply with them all and officers often have an easy time finding a reason to violate an offender.
Often sex offenders are mandated to wear a G.P.S. tracking device for the duration of their supervision. They are also subject to sex offender treatment including polygraph tests and Penile Plethysmography tests, which measure the size of an offenders penis while he watches images on a T.V. (txnp.uscourts.gov) Both tests have been debunked by science and are not admissible in court, however, they are used in sex offender treatment programs sex offenders are ordered into after their release. (nydailynews.com) Sex offenders are also subjected to “full disclosure poly-graph tests.” These tests mandate an offender report all the offenses he has ever committed even if he has never been caught for such offenses. Furthermore, the offender is mandated to sign a waiver allowing the disclosure of information to law enforcement. It is basically a catch 22. Refusal to par-ticipate in treatment and full disclosure polygraphs means a return to prison, however, participating means the possibility of new charges.
Courts have upheld most of the terms and conditions applied to sex offenders during their post-incarceration supervision. See United States v. York, 357 F.3d 14, 19 (1st Cir. 2004), United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), United States v. Dotson, 324 F.3d 256 (4th Cir. 2003). However, the courts have put the breaks on full disclosure polygraph tests, at least to a point. In a major victory for the constitution and sex offenders federal courts have held that forcing sex offenders to reveal crimes that they have not been caught for in a treatment program violates the Fifth Amendment. See United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016), United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005).
SEX OFFENDER REGISTRATION:
A. Why these laws are unconstitutional and punitive.
Nobody will argue that sex offenders commit ugly and despicable crimes that harm their victims for a lifetime. However, unless we are going to sentence an offender to a term of life in prison without parole….they are going to get out. Once they complete their sentence, regardless of how ugly and disgusting their crime may have been, we as a society cannot simply banish and shame them like leapers. It makes us no worse then the offender, more importantly it is unconstitu-tional makes society less safe instead of safer.
When these laws were first enacted they passed constitutional muster because they were “regulatory” in nature and not punitive. See Kansas v. Hendricks, 521 U.S. 346 (1997) However, a close look at the reality of what these laws have caused can no longer sway an honest finder of fact that this is still the case. Indeed, it may be time for such a look as it has been close to twenty years since sex offender registration and notification has been looked at by the Supreme Court.
Today registration and notification has caused countless cases of harassment by the public. Furthermore, because this information is public, offenders are often denied job opportunities since a simple online check can reveal a past they have already paid the price for. This impacts housing as well. In jurisdictions where there are no residency restrictions, or where such restrictions have been struck down, the same internet search will almost certainly halt and ex offenders chances of finding a home. In essence, these laws have ensured that these offenders always and forever will continue to pay for their crimes. Some may be alright with that, and an argument could likely be made that sex offenders deserve that, however, if we are going to let them out we cant continue to punish them. Like it or not, their sentence had an END date.
We also lump together all sex offenders and place them all on a public registry. However, not all sex offenders are dangerous and their crimes are not equal. If we place a teenager who had sex with his underage girlfriend on the registry next to someone who broke into a home and raped a woman, is that fair? Do they both represent the same threat? Of course not, yet they are treated the same, placed on a public registry.
Sex offender registration and notification also can make us less safe. The vast majority of sex offenses are not committed by a random stranger, like the cases cited above, they are committed by a family member or close friend. Furthermore, if a parent is simply focusing on the offenders they see on a web site they are not paying any attention to the other threats their child may be fac-ing. Also we have to think about the vast resources that law enforcement needs to actually enforce these laws and check up on these offenders. In the age of shrinking budgets and cuts our police simply do not have the resources to enforce these laws anymore. We also have to realize that if we banish and shame people we are hindering if not completely preventing rehabilitation. (aclu-nj.org) Also, in a shocking study in 2008 by the justice department it was found that Megan’s Law, de-spite its popularity, had no effect in keeping children safe…..yet we continue to waste millions en-forcing it.(washingtontimes.com)
SEX OFFENDER RESIDENCE RESTRICTIONS:
A. The current state of these laws.
The latest trend in sex offense laws has been to banish them from anyplace children con-gregate. This is often a 1000-2500 feet buffer zone. However, because it is often difficult to find a place in a city that is 2500 feet away from a school or playground or park these regulations can ef-fectively ban offenders from living in an entire city.
Initially these laws were upheld as constitutional like all the other regulations dealing with sex offenders. Almost all states upheld them on first glance as well. (npr.org) However in recent years the tide on these banishment laws has turned. Massachusetts, New York and California have struck these restrictions down as unconstitutional. Increasingly, state and federal courts are striking down these modern day banishment laws.
B. Why these laws are unconstitutional
In the United States we cannot simply banish people we do not like. If we do we set a dangerous precedent that could be used to exclude any criminal offender that the community does not want around. Not to mention that residency restrictions that impede an offender’s ability to have a home anywhere in their city of residence infringes on a person’s constitutionally protected right to life and liberty under the Due Process Clause and imposes punishment retroactively in vio-lation of the Ex Post Facto Clause of the United States Constitution. As the U.S. Court of Appeals for the Sixth Circuit recently explained when striking down Michigan’s new and draconian sex offender scheme, these laws:
“brand registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone re-strictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.” (freep.com)
A brief history of civil commitment including the jurisdictions that use it.
In 1994 Kansas established the Sexually Violent Predator Act. Its intention was to detain certain sex offenders, after their sentences ended, who were deemed mentally unstable and likely to re-offend. The commitment was for care and treatment and it was indefinite. The first candidate chosen for this commitment was Leroy Hendricks. Hendricks had a long history of molesting chil-dren. Indeed, Hendricks testified that he could not control the urge to molest children when he got stressed out. Kansas v. Hendricks, 521 U.S. 346 (1997)
Hendricks was committed as a sexually violent predator under the act. He brought multiple challenges to the law, including that the law violated the Due Process, Double Jeopardy and Ex Post Facto Clauses of the United States Constitution. Id. In rejecting his arguments the Supreme Court held that the commitment scheme was clearly civil in nature as its stated purpose is for care and treatment. Id. Once an offender can demonstrate that they are no longer mentally ill or a danger to society at large, they must be released. Because the civil commitment scheme was ruled as a civil and regulatory law constitutional protections against Double Jeopardy and Ex Post Facto laws did not apply. Also, the court found that the act provided adequate Due Process protections for those detained as sexual predators. However, in an important footnote Justice Kennedy said that if civil commitment were to be used for retribution or deterrence, which is the job of the criminal justice system, civil commitment would no longer be constitutional. Id.
Shortly after Hendricks was decided the Kansas civil commitment program was at the Su-preme Court again. This time it was being challenged on the grounds that the prior ruling in Kan-sas v. Hendricks mandated a complete lack of ability to control one’s behavior before one could be committed. The Supreme Court ruled that its prior decision in Hendricks does not require a “com-plete” lack of control over one’s behavior. Rather, it must only be shown that a defendant has a current mental illness or disorder that makes it “difficult if not impossible” to control one’s behav-ior. Kansas v. Crane, 534 U.S. 407 (2002) These two cases, Hendricks and Crane, have set the framework for modern day civil commitment of sex offenders in the United States.
B. The state of civil commitment today.
Today twenty states and the federal government have sex offender civil commitment pro-grams today. These programs are costly, costing tax payers multiple millions of dollars per year. The sad reality of these programs is that, while the states claim they are for treatment, and while the Supreme Court’s decision in Hendricks mandates that offenders be released when they no longer pose a danger, rarely anybody ever leaves. Instead civil commitment has become a life sentence for offenders who have already served their sentence in full. It is a place of no hope, a legal purgatory. Furthermore, even though these offenders are now patients and not inmates they are often held in prison like conditions if not actual prisons themselves. The federal civil commitment program is at a federal prison in Butner, N.C. and the patients who are civilly committed are mandated to dress the same as inmates, follow the same rules and even mingle and associate with convicted inmates. Therefore, the federal civil commitment program, like many of the states, is civil in name only.
Recently, federal judges in Minnesota and Missouri have found the state civil commitment programs to be unconstitutional, draconian and punitive. They have recognized it for what it is, not treatment but life imprisonment. Unfortunately, those holdings were overturned at the appellate lev-el and the Supreme Court has declined to hear the cases. So yet again, a system that is nothing more than a life sentence under the guise of mental health treatment is allowed to destroy the lives of men who have served their criminal sentence in full.
So draconian and disgusting is civil commitment that many countries refuse to extradite sexual offenders back to the U.S. Indeed, the United Kingdom is among them. Sex offenders who make it to the F.B.I. most wanted list cannot even be returned to the U.S. unless the U.K. is as-sured that the offender will not face civil commitment after his sentence ends. Civil commitment has been called a “human rights abuse” by the U.K. Supreme Court. Civil commitment is truly a sad footnote in American history.
C. The Future of Civil Commitment.
Politicians do not get elected and re-elected by advocating get soft on crime tactics. They have an even worse chance of remaining in office if they sponsor or support any bill that could make the life of a sex offender easier. So, there is no help coming from politicians unless it is forced on them by the courts. The problem there is that the courts have long ago turned a blind eye to sex offenders. We now have 20 years of data since Kansas v. Hendricks was decided. We now know that, while laws like registration of sex offenders and civil commitment were intentioned as “non punitive” and “regulatory” they have been implemented in a manner that can no longer be mistaken for anything but punitive.
Sadly, the courts simply do not seem to care or want to enter this debate. Surprising con-sidering federal judges are appointed for life. You would think they would be inclined the shake things up with a lifetime tenure…..but they are not in most cases. The simple fact of the matter is that for anything to change about civil commitment it will have to come from the U.S. Supreme Court and when they will decide to address what we all know is true about these programs is any-one’s guess. But most likely we will have to have a courageous appeals court strikes civil commit-ment down as unconstitutional first.
SORNA ( SEX OFFENDER REGISTRATION AND NOTIFICATION) AND THE AD-AM WALSH ACT:
What is SORNA and the Adam Walsh act?
In 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This act was a sweeping new bill targeting sex offenders and specifically those offend-ers who prey on children. This bill did a few things. It expanded the definition of the term sex of-fender by expanding the offenses that qualify as sexual offenses. The act also established a federal civil commitment program operated by the federal bureau of prisons. This program applies to those offenders who are in federal custody. The Walsh Act also made it a federal crime for an offender to not register as a sex offender.
The Walsh act also created SORNA which is the sex offender registry and notification act. SORNA mandates minimum standards for sex offender registration and notification in the United States. (smart.gov) The purpose of this was to close the many loopholes within the patchwork of state systems. SORNA also expanded sex offender registration to federal recognized Indian lands. (smart.gov) This act also mandated longer registration times for sex offenders, setting up a tier sys-tem. The act also mandated that juvenile sex offenders register. (smart.gov)
B. How have these laws changed sex offender laws in the United States?
SORNA has truly changed the game when it comes to sex offender registration. By making failure to register a federal offense this law has taken an issue that is historically a state issue and making it a federal one. This law has attempted to remove the power of the states when it comes to sex offender registries and notification. The act has also forced a tier system of registration on the states and required juveniles, whose records are historically sealed, onto a registry, sometimes for life. The registration requirements are worse than anything before it. In sum, SORNA has federal-ized sex offender registration, enhanced registration offenses and requirements and increased pen-alties for not complying.
THE PENDULUM SWINGS:
A. The states revolt against SORNA
While SORNA might be the most sweeping and draconian registration scheme in history, that does not mean it has been implemented. SORNA has been found to be offensive and draconi-an not only to the offenders it applies to but to many states as well. As of today, only 18 of 50 states have fully complied with SORNA and the law has been in effect for over 10 years now. This is not an accident. The costs alone of implementing SORNA are high and in times of fiscal restraint many states have realized that the cost of non-compliance outweighs the cost of implementation. States that refuse to comply will lose 10 percent of federal grant money for law enforcement. How-ever, it’s a small amount compared to the cost of implementing SORNA. For example, as of 2009 it would cost California ( a non-compliance state ) over 59 million dollars to implement SORNA. If they refuse to implement it, as they have, they would lose only 2 million dollars. So, from a dollars and sense point it’s an easy decision for the majority of the states. (justicepolicy.org)
There are additional problems that have prevented implementation as well. Some state su-preme courts have found SORNA unconstitutional and struck it down in full or in part as Cruel and Unusual as well as an Ex Post Facto violation.(cleveland.com) (dailycaller.com). In a major decision by the Pennsylvania Supreme Court the court held that SORNA violates the federal and state constitutions. The court held that sex offender registration is now punitive. As such it violates the Ex Post Facto clause of the constitution. This was a major ruling, the first of its kind to hold registration as punitive. This could cause other courts to make similar rulings not that the Pennsyl-vania Supreme Court has taken this brave step. In sum, the future of registries could be thrown into doubt of this starts a chain reaction. The ruling has been appealed to the U.S. Supreme Court and it would be helpful if they take the case to, hopefully, reclassify sex offender registration as what it truly is, punitive.
So, while SORNA is certainly sweeping and comprehensive it is not nearly as useful as intentioned as the majority of state have refused to even implement it.
B. How residency restrictions are increasingly being struck down by state courts as uncon-stitutional.
We are beginning to see the courts signal that their patients with residency restrictions and banishment laws are about at an end. In recent months and years state courts and supreme courts are increasingly striking these laws down as unconstitutional. Recognizing that a sex offender was prohibited from living in over 96 percent of San Diego the California Supreme Court said enough was enough. In California residency restrictions are essentially over and sex offenders can now live near parks and schools. (nypost.com) Other states are now following suit as residency re-strictions have recently been struck down in their entirety in New York and Massachusetts.
C. Packingham v. North Carolina, 582 U.S. ___ (2017) and how the Supreme Court may be singling that enough is enough.
In an attempt the harass sex offenders even more, North Carolina passed a law that essen-tially prohibited sex offenders from accessing social media websites under the rationale that this gives them access to children. However, the Supreme Court had had enough. In a rare unanimous ruling the court held that the broad social media ban violated the First Amendment of the Constitu-tion. Justice Kennedy writing for the court said “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. By prohibiting sex offenders from using those websites, North Caroli-na with one broad stroke bars access to what for many are the principal sources for knowing cur-rent events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
This was a rare win for sex offenders at the high court. However, more and more we are starting to see state and federal courts take aim at what has clearly become an oppressive and puni-tive system of laws intended to punish sex offenders well past the completion of their prison sen-tences. We can only hope that the Supreme Court will choose to take up more sex offender cases soon and change the precedents they have set that has caused all the harm to men who have com-pleted their time and damage to our constitutional rights.
WHY THESE LAWS MAKE ABSOLUTELY NO SENSE:
This paper has detailed and discussed the specific laws dealing with sex offenders and ar-gued against these laws. However, we have not yet discussed possibly the largest reason these laws are not needed. The science and studies that have been done addressing sex offender recidi-vism rates have conclusively shown that sex offenders have a lower rate of recidivism than any other type of criminal offender. Indeed, the U.S. Department of Justice did a study to find out just how likely it is that sex offenders will reoffend. The results were striking. A 2014 DOJ report found that the rate of re-offense for sex offenders was about 5 percent over ten years. It was higher as time went on. For example, the rate of re-offense was 27 percent over 20 years. This is a far cry from the 80 percent recidivism rate the Supreme Court has cited to allow laws like sex offender registration and civil commitment law to remain. Indeed, there is much debate on this point and many claim the Supreme Court simply upheld these laws based on nothing more than bad science and the myth of astronomical recidivism rates. ( nytimes.com )
The policies and laws that have been intended to make us all safer against the threat of sex-ual offenders has failed. These laws have limited the rights of a select group of people, thus threat-ening the rights of us all. Of equal concern is that the courts have, for over twenty years, turned a blind eye to the systematic striping of constitutional rights from American citizens based on their classification as a sexual offender. Indeed, our Supreme Court has saved almost all sex offender laws by terming them “regulatory measures” and not punishment. With over two decades of expe-rience with these laws we can now say that this is not true.
The legal field is one that is founded on the bedrock principle of ethics and equal justice for all. When we ignore the rights of a group of people we do not like and even support the removal of constitutional rights from people we do not like the legal profession and the courts lose credibility. The legal profession and the courts lose their credibility that they are fair and impartial, they lose their credibility that officers of the court and judges are ethical and that they will uphold the consti-tution of the United States. These laws call into question the credibility of our courts as a whole and of our Supreme Court, which has saved these laws and allowed them in particular.
As a whole this study has shown me that the principles that the United States stands for are mostly an illusion. It sounds good on paper but if our society does not like someone enough or a certain group of people enough, the legal system will find a way to justify taking their rights and their freedom and making their life as unpleased as it can. This study has shown me to truly fear our government and not to trust the court system. When this nation passes laws that the rest of the civilized world considers human rights violations there is something very, very wrong going on. With that said, this study has also given me a certain amount of hope. I have found that many courts have started to reexamine these laws and start to mandate change. However, until we see that from our Supreme Court none of it really matters.
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003)
Kansas v. Hendricks, 521 U.S. 346, (1997)
https://www.washingtonpost.com/news/true-crime/wp/2016/09/06/danny-heinrich-admits-he- abducted-and-killed-jacob-wetterling-ending-a-27-year-old-mystery/? utm_term=.fb6d80d959a1
Smith v. Doe, 538 U.S. 84 (2003)
United States v. York, 357 F.3d 14, 19 (1st Cir. 2004),
United States v. Johnson, 446 F.3d 272 (2d Cir. 2006),
United States v. Dotson, 324 F.3d 256 (4th Cir. 2003)
United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir. 2016)
United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)
34 U.S.C.A. § 20911
Oct 5th, 2020