America’s Civil Death Penalty: The Sexual Offense Registry

Used with permission

By Guy Hamilton-Smith . . . Oscar Wilde, writing from his cell in the Reading Gaol where he was imprisoned for homosexuality at the end of the nineteenth century, observed that “society reserves for itself the right to inflict appalling punishments on the individual, but it also has the supreme vice of shallowness, and fails to realise what it has done. When the man’s punishment is over, it leaves him to himself; that is to say, it abandons him at the very moment when its highest duty towards him begins.”

In America, few aspects of law and policy so perfectly embody Wilde’s observation of punishment in nineteenth century England as sex offense registries.

Registries and their application embody shallowness in that most courts do not regard them as punishments at all — hence the title of this piece reflecting their ostensible “civil” nature. If America had a civil death penalty, putting people on sex registries would be it.

While many countries have such registries, few operate as America’s do. The basic idea behind them is to broadly publicize the names, faces, and home addresses of anyone who has been convicted of any kind of a sexual offense (or, as some U.S. jurisdictions have done, most any crime at all). Along with placement on sex offense registries comes many legal requirements, such as complex reporting requirements and restrictions on where one is able to live. While these requirements vary from state to state (and sometimes city to city), they generally require strict compliance or else those subject to them run the risk of new prosecution for failing to comply.

In 2003, the United States Supreme Court was faced with the question of whether an Alaskan law that made the names and home addresses of people who had been convicted of sexual offenses public constituted punishment. It was an important legal question because, under the American federal constitution, ex post facto laws (that is, laws which increase the punishment for a crime after the crime has already been committed) are prohibited.

In a 6-3 decision, the Court held that it was “civil” as opposed to criminal, justified in part on the basis of the widely-shared perception that people who had been convicted of sexual offenses shared a “frightening and high” risk of re-offending (a perception that has little bearing in reality).

While these lists are justified on the basis of assumed dangerousness, the same Supreme Court in a separate case concluded that whether or not someone was actually dangerous was not a relevant question for inclusion on these lists.

Between these two cases, the Court denied critical constitutional protections for hated groups of people, thus giving the green light to laws which have evolved into something exquisitely punitive.Recently, a major court decision lambasted registries as ineffective at promoting public safety, while noting that they rendered those on them “moral lepers” who are forced to reside at the margins of society on the sole basis of a conviction. Another decision, currently on appeal in the United States 10th Circuit Court of Appeals (one step below the United States Supreme Court), called registries cruel and unusual punishments in violation of the Eighth Amendment to the United States Constitution — an almost unheard-of legal conclusion for American courts to reach outside of death penalty litigation.

Though, in my view, it is the right one.

I know, because of the nearly million people on America’s sex offense registries, I am one of them.

Read the remainder of the piece at the University of Cambridge Comparative Penology Blog.

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    • #44960 Reply
      Timothy D ,A. Lawver

      If I were to have a man sitting with me at my next FTR case I would choose Guy. I sincerely hope he reads this post & thread, God willing. He makes a good point with his correlation to Wilde’s predicament. I prefer Shakespeare.
      Act3 sc.3

      Good name man and woman, dear my lord.
      Is the immediate jewel of their souls.
      He who steals my purse; steals trash; Tis something yet nothing
      Twas mine, tis his; and has been slave to thousands.
      But, He who flitches from me my good name; robs me not of that which enriches him; And makes me poor indeed. — W. Shakespeare

      The liberty interest in good reputation as the essence of human beings.
      Stolen money amounts to nothing meaningful as it merely does the bidding of men
      Placing a man on the registry does not enrich safety, but makes him socially impotent and irrelevant. (trash)

    • #45919 Reply

      I believe that every registered person in the US should take the time to memorize the following, and write it neatly on the SO registration form every time they register:
      “By compelling me to provide my personal information to you, under threat of criminal prosecution, with no choice to opt out and remain silent, you are violating my rights under the US constitution and international law. I am signing this document under duress.”

      • #46083 Reply

        They would probably put you in jail for writing on their stupid piece of paper. It would be a violation.

    • #46396 Reply

      I really didn’t want to touch on this death of a salesman crap as that is what all this boils down to. Its plain and simple man overpowering man via trhe computer age. If thats the way God Planed it than man doesn’t need anyhing to do with woman, kid or ortherwise. Now each of us have a story so who on the bright side of the mon wants to come to the winning solution.

      Even human’s want to figure how “the day the earth stood still” and even people still dont’ know how the earth was formed and will try to prove by their “human logic”. I guess the death penalty is human logic. Was Hitler a human logic or a human force of one? Sure we could name all those in power for the death penalty

      . We could name woman for bearing children. We could name adam for eating the fruit for knowing that eve was naked but can we all blame ourselves for someone’s greed or is the two wrongs don’t make a right tossed aside for the betterment of mankind? You know the gas chamber is a horrible way to die. I wouldnt’ knowit as I have never experienced it. What about the sex offender or the one that offends in any circumstances. wather it makes one remorse or makes a smile in others.

      I wonder what human behavior is all about some selfish you play with yoru toys and I’ll play with mine. At times you all people on here want to be some Enstine and figure everything out but we can’t. So who gets the prize for being right of which thing is the death penalty.

      Maybe the sex offender ordeal is a type of death penalty to some if one lets it be. Maybe not having contact with your Creator is a death penalty. Is killing a child a death penalty yes, killing another human is the harshest but remember their are many ways to kill and common logic about all this sex registry is one or should we discern each person we meet and greet.

      I wonder who weeds out the good and the bad fellow today by there logic and principal today.

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