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Commentary

Kat’s Blog: Dissenting Judges Should Be Ashamed of Themselves

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.

Join the discussion

  1. Dustin

    Curiously, the phrase “affirmative disability or restraint” is nowhere to be found in law dictionaries, at least the free on-line ones. The common definitions, pulled from Merriam-Webster online, are:

    disability
    noun: disability; plural noun: disabilities
    1. a physical or mental condition that limits a person’s movements, senses, or activities.
    2. a disadvantage or handicap, especially one imposed or recognized by the law.

    restraint
    noun
    1. a measure or condition that keeps someone or something under control or within limits.
    2. unemotional, dispassionate, or moderate behavior; self-control.

    Notice that those judges overlook the statutes imposing residence, employment, and presence restrictions applicable solely to registrants. If those aren’t the very definition of “affirmative disabilities or restraints” then I have to seriously wonder how in God’s name they ended up with black robes.

  2. TS

    These three judges would not understanding doxxing either then if they don’t understand shaming, but to start maybe the ought to drive up MD 32 to Jessup and the correctional facilities there to understand it better.

  3. Tim in WI

    The discounted affirmative restraint resolves around the right to remain silent! Therefore a fundamental right is at stake! You see the right to remain silent to government’s repeated demands for information does extend to the machine database. It is the general subservient disposition of the human, relative to the machine that exemplifies “punishment.” Indentured servitude is a form of punishment.

    There is a necessary distinction to be made between: Having a database of known persons with convictions AND forcing by law the maintenance of same.by those indentured. The latter is slavery while the first is not. If no liberty at stake who would complain – J.P. Stevens.

  4. New Person

    That scarlett letter exists.

    I couldn’t land potential jobs because of the registry. There are areas I cannot be allowed upon because of the registry (I’m implying military bases).

    Being on the registry excludes you from HUD assistance. Being on the registry will deny you access to other countries because it’s part of the IML.

    These judges probably also believe that “separate, but equal” is constitutional as nothing really is being denied because they have their own water fountain, school, and back of the bus.

  5. Saddles

    Should we all put a label on all this convid-19 pandemic in the nation and the world today. Is this some right to remain silent, some Devil and daniel Webster charm school something, or a Benedict Arnold constitutional understanding of social studies, or who’s selling who out today in American Justice.

    I’m sure the Gospel just goes so far with this computer understanding or who has the most wirey tongue today. Is it the man or the woman in all this gossip column or the one in leadership today. Is their really true value in America today..

  6. AJ

    “(I’ve read these exact same words, in a 2003 Alaska ruling, don’t these judges ever have anything new to say?)”
    —–
    Not when trying to find any and every way to keep registration as non-punitive. Using SCOTUS’ flawed reasoning is the only tool they have and, sadly, it’s the Supreme tool–authored by some Supreme Tools. Those courts that have done their own analyses almost invariably have found otherwise.

    • Tim in WI

      AJ,
      Spot on! Rehnquist, Kennedy, O’Connor, Scalia, all Catholics. The 2003 case had a tortured history that began in 1997 in an Alaska state court. Alaska decided to leave out in person component per statute and it wasn’t in the Wetterling Act per OMNIBUS94. They slow rolled the regime from the onset to avoid constitutional incongruity. The key was gov ” need” sold via the sex offender ( stereohype). But we’re they selling safety or machine? How effective would facial recognition hardware be without a database to compare it too? Far more a conversation about the convenient machine rather than convictions of human. A certain civil designation of domestic electronic surveillance is a Machiavellian must……no?

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