A headline at LegalNews.com caught my eye, “High Court Rules Sex Offender Registration Qualifies as Punishment, Dissent Argues Registry is Administrative, Imposes Burden but No Restraint”.
The case centered around a Maryland man who had been charged with and pled guilty to human trafficking in 2015. Upon his release from prison, according to the Court of Appeals ruling, the Maryland Sex Offender Registry had “wrongly” added the man’s name to the registry, requiring him to register as a “sex offender”. Under his plea agreement, the charge of trafficking of a minor had been dropped by the prosecution. He challenged the order in Anne Arundel County Circuit Court saying he was never convicted of trafficking a minor.
This 4-3 ruling was the first time that the Court of Appeals held that the registry is a punishment of the criminal rather than merely a post-conviction administration act by a state official to alert the public to a convicted child “sex offender” in their midst. The Court of Appeals deemed registration a punishment based on the “affirmative disability and restraint” it places on registrants, not to mention the stigma and the plethora of personal registrant information which is then readily available to anyone searching on the Internet. Also included was the fact that 25 years on the registry was longer than the prison sentence for the underlying sex offense.
The high court landmark 48- page ruling drew a 52- page dissent opinion.
In the ruling, Judge Shirley M. Watts for the majority, touched on the significant amount of personal information on registrants that becomes available to the general public once someone is placed on the registry. She also discussed registrants being ostracized, becoming victims of threats and violence and losing potential employment and housing opportunities. The conclusion, sex offender registration has an affirmative disability-restraint and this weighs heavily in favor of registration having a punitive effect. Judges Robert N. McDonald, Joseph M. Getty and Brynja M. Booth were in agreement.
And then there was the dissent…
Judge Jonathan Biran argued that the registry isn’t a punishment that places any restraint on a “convicted sex offender”, no, it’s an administrative act that imposes a burden.
Burden, my A–. (Sorry, but that’s the first thought that comes to mind.)
Is this judge really so blind that he can’t tell the difference between a burden and 10 to life in registry hell? Carrying bags of groceries up three flights of stairs is a burden. Carrying the weight of the Registry on your back for 5 years to a lifetime, is a whole different animal.
Judge Biran went on to say “most notably, of course, registration imposes no physical restraint and so does not resemble punishment of imprisonment which is the paradigmatic affirmation of disability or restraint. In addition, the public ostracism related to being placed on the registry does not convert the administrative burden to a punishment, as may have been the case in colonial times when wearing a scarlet letter was a criminal sentence”. (I’ve read these exact same words, in a 2003 Alaska ruling, don’t these judges ever have anything new to say?)
The judge continues that” the majority’s analogy to shaming ultimately is inapt because in today’s age, public information is more readily available on most Americans than it was when “shaming” was a recognized form of punishment.” “Regrettably, public shaming on the Internet of nonpublic figures is so common in today’s world that it is difficult to conceive of the humiliation attendant to sex offender registration as a form of state- imposed punishment.”
Oh Judge, does someone need to explain to you that “shaming” never went out of style as a form of punishment in America. We still shame everyone for everything, body types, ethnicities, genders, races, sexual preferences, those with disabilities and yes, registrants and registrant’s families. They all get shamed.
Wake up and smell the coffee Judge! Shaming is a punishment, shaming caused by the registry is just a government sanctioned punishment.
Chief Judge Mary Ellen Barbera and Judge Michele D. Hotten joined Biran’s dissent.
The real shame is that Judge Biran and those judges that agree with him might be too narrow-minded to see the big picture. Razor-wire, shackles and cell blocks are not the only way people are restrained. Not being able to find a job or housing because of the registry is disabling. Shame comes in all forms. And, punishment is punishment
These three dissenting judges should all be ASHAMED.