CONSTITUTIONALITY OF REGISTRIES
Smith v. Doe, 538 U.S. 84 (2003)
The constitutionality of sex offender registries was last upheld by the United States Supreme Court twenty years ago in Smith v. Doe, 538 U.S. 84 (2003). The question at that time was whether or not the Alaska Sex Offender Registry Act was constitutional due to its retroactive application to offenders placed on the registry long after having served their sentences.
In a 6-3 decision, the Court decided the Alaska sex offender registry was a regulatory scheme that is “civil’ in nature rather than a punishment. Therefore, the law was upheld as constitutional as it did not violate the ex post facto clause.
Key comments:
- This Court has already determined that an imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective.
- The Act’s notification provisions are codified in the State’s Health, Safety, and Housing Code, confirming the conclusion that the statute was intended as a nonpunitive regulatory measure.
- Respondents’ argument that the Act, particularly its notification provisions, resembles shaming punishments of the colonial period is unpersuasive. In contrast to those punishments, the Act’s stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.
- It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint.
- No evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred
In Smith v Doe, and a decision a year earlier, Justice Anthony Kennedy wrote sex offenders pose “frightening and high risk of recidivism” and that “untreated offenders has been estimated to be as high as 80%”. This statement and statistic have been widely regarded and completely inaccurate.
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PROBLEMS
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Cruel & Unusual Punishment
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Due Process
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Double Jeopardy
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Ex Post Facto Clause
There are many significant problems with the Supreme Court’s ruling that become more and more clear each passing year.
The Court used false information to claim that sex offender’s have a frighteningly high reoffense rate. Additionally, the majority held the civil law is not a form of punishment.
The Alaska Sex Offender Registry in 2oo2 was dramatically different than any present day registry. At that time, some offenders got off the registry in 15 years and registration updates were not required to be made in person.
But since then state legislatures have continues to add more and more provisions to these registries. You must report in person. Many people are required to be registered for life. There are restrictions on where you can life or work. Offenders may not be able to go into a school. Businesses and service providers use the registry to exclude offenders from their property.
Justice Kennedy even minimized the consequences of sex offender registries by claiming they are less punitive then the revocation of a professional license which is incredibly laughable and silly.
Over the years, several state and federal courts have in fact stated, contrary to what the Supreme Court said, that registration schemes are punitive in effect.
In addition, you have offenders being placed on the registry for old crimes committed in the past. States have begun to reject this practice.
Lastly, you have sex offenders with vastly different offenses and risks to society who are being lumped together. There is no due process to decide what level of risk any specific person poses to their community.
Over the last decade, Courts have been becoming increasingly skeptical of the constitutionality of sex offender registries.
Here are some key decisions:
- In 2001, the Hawaii Supreme Court ruled the state’s registry was unconstitutional because it afforded no due process to offenders.
- In 2006, the Supreme Court of Missouri ruled the state could not place former offenders with prior crimes on the registry.
- In 2008, the Alaska Supreme Court ruled the state’s registry was unconstitutional when retroactively applied to offenders with previous convictions.
- In 2012, the Supreme Court of Ohio ruled a state could not place a juvenile on the registry for life.
- In 2013, the North Carolina Court of Appeals ruled the state could not prohibit offenders from exercise free speech by using public internet websites.
- In 2013, the Maryland Court of Appeals ruled the state could not retroactively force former offenders on the registry.
- In 2014, the Pennsylvania Supreme Court ruled the registry as appled to minors was unconstitutional.
- In 2015, the California Supreme Court ruled that a 2000 foot residence restriction around schools was unconstitutional.
- in 2015, a federal judge in the Sixth Circuit ruled residence restrictions known as “exclusion zones” were unconstitutional.
- In 2017, the Pennsylvania Supreme Court ruled the retroactive application of the registry violated the state’s constitution.
- In 2023, the Montana Supreme Court ruled that retroactive application of the registry for a previous offense was ex post facto punishment and a constitutional violation.