Criminal or civil? Right or wrong? Does anyone care?

By Scott H. Greenfield . . . It’s bad enough, both for substantive as well as factual reasons, that the Supreme Court in Smith v. Doe held that sex offender registration was not punitive, but civil, and therefore beyond the reach of the Ex Post Facto Clause. Not only was it grounded in utterly baseless statistics of recidivism, but it indulged in the fantasy that rhetoric was an adequate substitute for inquiry before destroying the future of an entire class of people.

In other words, this categorical group known as “sex offenders” was so deserving of a life of misery, prohibition and shunning for the putative safety of the community that there was a rational basis for civil rules to make them societal outcasts. Where they can live, work, exist for decades, if not the rest of their lives, was constrained to the point of impossibility. And should they mess up compliance with any detail, back they go to prison.

But it’s not criminal. It’s civil. For no better reason than legislatures say it’s not punitive, but for the safety of the children, Even though it’s punitive. Extremely punitive.

Arizona wants to take this further. Paul Cassell wants to help.

The Supreme Court will soon consider whether to grant a certiorari petition filed by Arizona, which involves a voter-approved amendment to the Arizona Constitution rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a 4-3 divided opinion, the Arizona Supreme Court concluded that this amendment was unconstitutional. Arizona has sought review of that decision.

Along with counsel of record Allyson Ho and her colleagues at Gibson, Dunn & Crutcher and Steve Twist at Arizona Voice for Crime Victims, I have filed an amicus brief urging the Court to grant review. Our brief argues that nothing in the Constitution prohibits the States from empowering trial courts to protect crime victims by denying defendants bail when—as determined by a trial judge after a full and fair adversarial process—the proof is evident that the defendant committed a sexually violent offense.

What might catch an eye immediately is the conflict between the “categorical ineligibility” for bail and the “full and fair adversarial process.” The apparent key to Cassell’s argument is whether “the proof is evident or the presumption great.” Bear in mind, this is at the stage of arrest, before discovery, before motions, before trial. There is no proof, but only accusations.

As for “the presumption great,” we already have one: the presumption of innocence. . . .

Sex offenders today are what drug dealers were during the crack epidemic, or black teens during the Superpredator panic. There is no empathy left for them, but worse still, they are painted as so deplorable and irredeemable that they are unworthy of the rules, the safeguards, we otherwise apply to everyone. Sure, it’s wrong, but so what, we hate them so very much.

Read the complete blog post here at Simple Justice.


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