By Steve Yoder….
The Constitution’s ex post facto clause prohibits passing a law that retroactively increases the punishment for a criminal act that an offender committed before the law was passed. But in an ingenious 2003 Supreme Court ruling, a 6-3 conservative majority held that retroactive placement on a state sex offender registry–being put on a registry that was created after an offender committed his crime–doesn’t violate ex post facto because registration isn’t punishment.
Daily life for those on state sex offender registries makes that claim hard to square with reality. Nowhere is that more true than in Alabama–registrants in that state are subject to a regime every bit as grinding as that of Cold-War Soviet Russia.
Take the case of 60-year-old Michael McGuire. In 2010, after several decades as a hair stylist and jazz musician in Washington D.C., he decided to move back to his hometown of Montgomery to be with his aging mother and extended family.
He’d committed a serious crime 25 years earlier–he’d raped and assaulted his 30-year-old girlfriend, who he’d been with for five years. He was convicted of sexual assault in a Colorado court and served his full jail term, spending three years locked up and a fourth on parole.
After leaving prison, he got his life back together and had no subsequent arrests or convictions.
When in 2010 he arrived in Montgomery, he took the advice of his brother, a local attorney–he visited the police department to confirm that he wouldn’t be subject to the state’s sex offender laws. His crime, after all, happened 26 years before the state’s passage of its most recent 2011 sex offender law, and he’d never been on a registry in any of the states where he’d lived.
What police told him has sent his life into a tailspin. He’s indeed required to be on the state registry–today his photo, name, and address are on the state website. He can’t live within 2000 feet of schools, parks, or playgrounds, which puts nearly all of the city off limits to him. He pays rent on his and his wife’s apartment but can’t live there because it’s in a banned zone. The same is true for the homes of his other relatives since their apartments and homes are too close to those places where children congregate. He can’t live in a home with children, even though his crime didn’t involve a child.
No one will hire him, and he can’t take music gigs because the law also bans offenders from working within 2000 feet of places where children congregate–all of the venues that have offered him work are in banned zones. In fact, 85 percent of jobs in the city are off limits to registrants. Half of Alabama’s registrants are unemployed, eight times the statewide average.
To travel outside the city, he needs a travel permit, which he can get only by applying in person at the police department.
And as is true for all of the state’s registrants, his driver’s license includes the words CRIMINAL SEX OFFENDER in big red letters.
Today he’s homeless, living under a Montgomery bridge. He’s required to show up in person twice a week at the police department to register by filling out a three-page form. If he misses one appointment, it’s a felony. Alabama’s law requires lifetime registration, and there’s no provision allowing registrants to be removed.
Around the country, thousands like McGuire are on sex offender registries for crimes they committed years before passage of the state laws that created those registries.
In oral arguments during the 2003 Supreme Court ruling, then-lawyer John Roberts (yes, that John Roberts) argued that Alaska’s ex post facto application of its sex offender law should be preserved. Registering with the police four times a year, he said, is much like filling out an application to join Price Club.*
The John Robertses of the world may wish to believe that registration involves just a bit of paperwork. But beliefs aside, the sky really isn’t green, it’s blue. Price Club is to sex offender registration what a hotel room is to a jail cell, what a job interview is to interrogation at a CIA black site, what a conference nametag is to the yellow Star of David badge.
Courts are starting to listen–lawyers and their clients have won cases in state courts in Ohio and Maryland in the last few years. And one day, that 2003 decision, much like Plessy v. Ferguson and Dred Scott v. Sandford, will be upended, standing as a testament to judges’ ability to reach decisions they’re comfortable with, rather than those that fit the facts.
*At another point, Solicitor General Ted Olson defended the law by telling the Justices that the re-offense rate among sex offenders is higher than for other crimes–in fact, the opposite is true.
originally published in lifeonthelist.org July 16, 2015
5 Thoughts to “Alabama sex offender statutes turn productive citizens into homeless pariahs”
Wonderful piece and my thanks to Steven Yoder.
My question for him: when are we likely to see a challenge to Smith v. Doe and do the current Supremes have what it takes to honestly challenge it?
Many are, no doubt, surprised to learn that that champion of gay marriage who argued on its behalf before the Supreme Court, Ted Olson, had also lent his voice in support of that manifestly ignominious decision which was so destructive of individual liberty. This is illustrative of the fatal conceit of progressives in abandoning fundamental tenets of liberalism long ago in its quest to curry favor with the hysterics and to appeal to their ignorance. He, and those like him, need to be held to account for the damaged lives which is the result of their demagoguery.
It took far less courage to argue on behalf of gay marriage in 2014 than it would to argue on behalf of sex offenders, either in 2003 or today.
I would not presume to answer on behalf of Steve, but my limited knowledge of the law leads me to believe that the Supreme Court cannot challenge anything. My understanding is that before another case can be heard by them affecting the constitutionality of the registry, it will have to be filed in a lower court…a state court, maybe…and then the decision be appealed up to the next level, and so on until it reaches SCOTUS. And then they have to decide whether to hear it or not. Of course, I could be wrong, but that is my understanding.
You are absolutely correct, Sandy. So what I’m asking of Steven is, in effect, to gaze into a crystal ball and to offer his prognostication. So maybe the fairer question might be “Would the Supreme Court consider granting certiorari in hearing such a challenge and, would it have the resolve and integrity that would be required to overturn their earlier abandonment of principle?”
Many who affirmed that earlier decision are still on the bench and, of the newer members, there is little to encourage hope. Certainly, Obama’s additions to the Court are enormously discouraging, from any liberty perspective.
It’s noteworthy that none of them come from a criminal defense background and that it may well be impossible today to advance those with such backgrounds to the Court. In fact, I don’t think any of the Justices come from criminal defense with the exception of Ruth Bader Ginsburg.
It is all about prosecution now and has been for many years.
Perhaps it is time to seriously consider term limits for the Justices.
The constitution is a broad inscription that has been written to protect us from radical laws such as these harsh laws being placed on sex offenders, charging them for a crime they think they may commit in the future. Law makers are blatantly ignoring the constitution and the rights of American citizens across the board.
Nobody wants to be around a pedophile,,but this list groups all together. It is kind of like the Salem Witch hunts. Also there is big difference between consensual sex and a violent act, it is ridiculous of everyone to think girls do not have sexual feelings. Girls mature much sooner than boys. And what happened to he paid his debt to society??