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. Full Article
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“… 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.”
How can THIS same reasoning not be used in front of a judge to argue everyone off of the Registry, or challenge an individual’s required status on it?
If you cannot designate a level of ‘community danger’ to an entire class of people for bail, then how the HELL can they apply registry requirements to every single person by default??
Because it’s “just a civil regulation!” Presto, Problem gone.
While “civil” in intent, Megan’s law IS punitive in practice and application.
The “high recidivism” and “public safety” arguments they continue to trot out as an argument needs to be delegitimized.
“If you cannot designate a level of ‘community danger’ to an entire class of people for bail, then how the HELL can they apply registry requirements to every single person by default??”
Excellent point that was answered by the tier system most states have enacted (but aren’t doing) and ultimately make no difference anyway, in terms of risk assessment or discrimination against the registrant.
I am surprised equal protection and seperation of powers dont have more challenges.
There is plenty of precident already set that a judge must taylor the punishment AND special restrictions that protect the public to the individual and the circumstances. The legislation is not meant to be a more powerful branch nor should they interfere with the judiciary, therefore they should not be able to enact laws that bypass these protections criminals receive during a judicial process. It doesnt matter if the legislature brands the laws civil or punitive as either way they pertain to a judicial and criminal process with established rules that have already been through over 100 years of constitutional fine tuning and challenges.
The whole reason judges are given a wide latitude in determining sentences and probation conditions is specifically so they can be tailored to individual circumstances. It’s rarely used that way and when it is, the judge’s job is (at the very least) at risk. Judges that impose less than the max sentences are normally recalled or voted out.
Regarding probation conditions, no law can prescribe what’s necessary across the board – specific incidents and individuals vary too much. There’s no point in mandating substance abuse counseling, for example, if the incident in question didn’t involve substance abuse. Mandatory mental health “treatment” is unnecessary for the most part. Recidivism is already near-zero after conviction and sentence, regardless of the number of separate offenses committed previously.
Courts are supposed to tailor restrictions to the convict, not impose every restriction they can dream of. Nowadays they just restrict everything that can be related within the third degree of anything sexual to ensure the probationer spends the entire period running in and out of jail/prison. Nothing short of sledgehammer-induced hypnosis will convince me otherwise.
Administrative is just another word for Punitive……M’erica!