Blanket Exclusions, Animus, and the False Policies They Promote

Abstract:

Saying something is true does not make it so.  And saying it louder does not make it truer.  But such is the legislative posture behind modern day sex offense registration laws that punish those who commit sex crimes because of entrenched myths that overstate the laws’ positive impact on public safety and exaggerate recidivism rates of offenders.  And it is not only registration schemes themselves that have been scaffold-ed by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes.  And in its most recent chapter, the narrative has been formalized into blanket exclusions – or what this article calls “all except for” provisions – that have inserted into a myriad of criminal justice reform efforts without much notoriety.

The effect?  Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants. Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous blanket exclusions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.

This article examines the moral panic and false data used to buttress blanket exclusion provisions – their inflated importance obvious.  It concludes that these measures, which are un-tethered to public safety concerns, and only supported by governmental and community animus, violate fourteenth amendment protections.

Carpenter, Catherine L., Blanket Exclusions, Animus, and the False Policies They Promote (August 2, 2020). 50 Sw. L. Rev., Forthcoming, Available at SSRN: https://ssrn.com/abstract=3665638

Article:

Saying something is true does not make it so.  And saying it louder does not make it truer.  But such is the legislative posture behind modern day sex offense registration laws that punish sex offenders1 because of entrenched myths that overstate the laws’ positive impact on public safety2 and exaggerate recidivism rates of offenders.3  And it is not only registration schemes themselves that have been scaffolded by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.4

Despite empirical studies to the contrary,5 legislatures persist in the assertion these offenders must be singled out for harsher treatment because their convictions portend future dangerousness.6  The basis for this assertion is the wildly familiar perception, but wholly inaccurate finding that sex offenders recidivate at rates that are “frightening and high.”7  Ira and Tara Ellman’s article, Frightening and High: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, exposes the faulty and scant data that was used by the Supreme Court in two decisions8 to promote this inaccurate view.9

Faulty data is not relegated to adult offenders.  Flawed statistics also provided the impetus to place child offenders on the registry.  Noted scholar and researcher, Franklin Zimring, traced the claim of high recidivism rates among child offenders to a 1993 study conducted by an inexperienced and ill-equipped Task Force that included “387 unproven assumptions about adolescent behavior, dangerousness, appropriate justice system responses, and the impact of various interventions on long-term development and life opportunities.”10

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes.  And in its most recent chapter, the narrative has been formalized into blanket exclusions – or what this article calls “all except for” provisions – that have inserted into a myriad of criminal justice reform efforts.  The effect?  Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants.11

There is no doubt that the country is on the precipice of change.  At all levels of government, we are witnessing reforms in incarcerating12 and policing policies.13

Too slowly, it has dawned on us the seriously negative consequences of mass incarceration, propped up by decades of retributive policies,14 monetary bail requirements,15 three strikes laws,16 and lengthy prison sentences.17  The bill has come due and we can no longer afford it.18

The era of criminal justice reform did not happen overnight, but changes have been sweeping and with bipartisan support rarely seen these days on other topics.19  Occurring at both the national20 and state level,21 reform efforts have resulted in a dizzying array of legislation to reclassify crimes to shorten prison time,22 provide parole23 and expungement opportunities,24 change long-standing policies on monetary bail,25 and create reentry and diversion programs.26

That is, all except for those who have been convicted of sex offenses.27

Blanket provisions that exclude those who have committed sex offenses are commonplace in this era of reform,28 inserted into legislative reform regimes without much opposition or notoriety.29  Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous “all except for” provisions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.30

Consider a small, but instructive, example: the crime of shoplifting.  Until recently, California did not have a crime called shoplifting.  A petty thief who intended to steal upon entry of a commercial establishment in California was guilty of the more serious crime of burglary,31 punishable either as a felony or up to one year in county jail.32  In 2014, California voters ushered in the crime of shoplifting as part of “Prop 47,” a sweeping set of criminal justice reforms designed to reduce the ills of mass incarceration and reallocate money spent there to schools and other noncriminally related projects.33  Differentiated from burglary, shoplifting is charged where the intent upon entry of a commercial establishment was to steal less than $950, resulting in a punishment less severe if convicted.34  The new crime of shoplifting fit well into this paradigmatic shift because it carved out a less serious crime that would not necessarily require imprisonment.  However, two classes of persons were excluded at the outset from receiving this potential benefit – habitual offenders and sex offense registrants.35

It is not only in newly laws or downgraded felonies where registrants are excluded. In what is best described as a demonstration of governmental animus, registrants have also been excluded from receiving compensation from a state victim’s compensation fund, even where the compensation requested does not arise from circumstances of the crime the registrant had committed.36  That is the effect of this blanket exclusion: a one-sizefits-all punitive stance that deems all registrants unworthy of benefits from criminal justice reform, reintegration efforts, or compensation that is available to others.37

And this is where the article starts.  Part I of this article provides an overview of registration and notification schemes and offers a sampling of various criminal justice reform efforts across the country that have instituted blanket exclusions to bar sex offenders from benefits of the reform.

With an understanding of the blanket exclusion, Part II exposes its fundamental flaw.  The section contends that “allexcept-for” provisions rely on false assumptions and faulty data regarding a registrant’s future dangerousness, and consequently, they lack a rational relationship to a public safety interest.  Rather, this section demonstrates that, without empirical support, these blanket exclusions are but another symbol of the societal panic that has gripped the country and the political pressures that have succumbed to it.38

Building on accurate data regarding recidivism rates, Part III demands that we should no longer accept as the status quo meritless exclusions formed by governmental and community animus.  Relying on recent judicial developments in the law, Part III urges that these laws should be struck under fourteenth amendment protections.

I. “ALL EXCEPT FOR” LAWS:
BLANKET EXCLUSIONS BASED ON ANIMUS

The “all except for” provision to reform efforts is only one piece of a much larger tapestry that isolates and marginalizes those who have committed sex offenses.  Historically, by definition and operation, registration and notification schemes were designed specifically to set apart these actors from their criminal counterparts.39  Its beginnings were undeniably checkered; arguably the first registry was motivated by homophobia.40  Adopted in California in 1947, the earliest registry has been critiqued as a not-so-subtle attempt to target and criminalize the sexual conduct of gay men.41  But even with that unseemly historical context, the earliest registry, with eleven registrable offenses and no public notification,42 is a far cry from the breadth and scope of state registration schemes today, which are complex and mammoth, often including forty registrable offenses, residency and presence restrictions, GPS satellite monitoring, and frequent in-person registration.43

The dramatic increase in the burdens associated with registration was not accidental.  With support from two Supreme Court decisions in 2003,44 registration and notification laws have flourished modernly as civil regulatory measures, still expanding and largely unchecked.45  The Court’s limited jurisprudence on this issue nonetheless delivered what I would describe as a one-two punch. In an opinion, from which twenty years of lower court decisions has flowed,46 Smith v. Doe held that because sex offender registration laws are not punitive but regulatory in nature, constitutional protections such as ex post facto or cruel and unusual punishment do not apply.47  In that same term, in a case that legitimized public notification under “Megan’s Law” websites, Connecticut Department of Public Safety v. Doe held that procedural due process did not demand individualized assessment to disseminate registrants’ information to the community.48  Together these decisions “green lighted” the ensuing wave of increased governmental burdens and prohibitions protected by the label of civil regulation.

Nearly twenty years later, “super-registration schemes” have become a staple for the carceral state.49  A brief look at today’s registry paints a grim picture of a society intent on punishing and ostracizing those who have committed sex offenses.50  Today, nearly one million people have been forced to register,51 obligated to meet onerous burdens and prohibitions on their housing, employment, education, and movement,52 and which deeply harms not only the registrant but family members as well.53  Professor Wayne Logan criticizes registration regimes as a governmental attempt “to use geographic limits to achieve social control goals.”54  If not guaranteeing physical banishment from the community,55 what has been achieved through these laws comes very close.  The court in Millard v. Rankin summed it up well:

[Registrants] face a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public, directly resulting from their status as registered sex offenders, and regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes.56

With this as our landscape, it is not surprising that legislatures have enacted reform efforts that specifically and intentionally exclude registrants.  This section provides an overview – a snapshot if you will – of the various state-led “all except for” exclusions.  What knits these unrelated laws together is animus toward the registrant.  Not one demonstrates a rational relationship between the blanket exclusion and the state’s goal to protect the safety of the community.57  Instead, each law described below suffers from an important failing: each is wildly overinclusive and untethered to public safety concerns.

Primarily, reform efforts arise in two forms: automatic entitlement and allowance based on discretionary judicial review.  Under new legislation that provides automatic entitlement, all registrants are categorically barred from receiving the benefit of reform even though, like their counterparts, they meet the other statutory requirements.  Under statutes that incorporate discretionary judicial review to receive the benefit, registrants are even denied the opportunity to present the same evidence that their counterparts are able to show to receive the benefit.

There is another commonality among these blanket exclusions.  Because they are overinclusive, the non-violent sex offender has become the casualty.  Although the newly enacted laws focus most often on non-violent offenders, it appears that the term “non-violent” is in the eye of the beholder – in this case, the state legislatures. Despite their characterization as non-violent, non-violent sex offenses are routinely statutorily excluded from the reform efforts listed below.58

Think overinclusion.  Think shoplifting.

Denial of sentence reclassification aka “Second Chance Acts.”  The landscape was ugly: prison populations were rising even as non-violent crimes were down.59  In response, initiatives developed to reclassify certain felonies, mostly drug related and theft, to misdemeanors in order to ameliorate rising prison populations and to target limited correctional resources more efficiently.60

The message resonated with voters and legislators alike across the country.61  California serves as an excellent example when it implemented the Safe Neighborhood and Schools Act (“Prop. 47”), a legislative package that included reclassification provisions for non-serious and non-violent crimes.62  The Act also created new sentencing provisions which allows persons serving, or who have served, felony sentences to petition for a recall or resentencing.63  Same was true for Indiana where the new criminal code changed Indiana’s four classes of felonies to six levels,64 as well as for Delaware where stakeholders came together to “propose Delaware’s most comprehensive criminal justice reform effort in decades.”65  Yet, each of these comprehensive packages specifically excludes registrants from many benefits.66

Denial of good time credits.  To alleviate overcrowding, states introduced good time credits where inmates who have shown by conduct and attitude while in custody that the risk of offending has diminished are eligible for modification of their sentence.67  Yet, despite being model prisoners, all sex offenders are prohibited from seeking good time credits or risk having their credits reduced.68  And in a clear example of animus directed at registrants,69 even those who commit violent felonies in California may receive 15% conduct credit,70 while those who commit sex offenses may not receive any credit.71

Denial of Parole.  Given the impetus to reduce prison overcrowding, it makes sense that states have revamped the parole system to provide inmates with increased eligibility for early parole.72  Here, legislatures continue to contort the term “nonviolent.”  Recognizing that all sex offenses are not violent, some states have created a new category of exclusion for sex offenses specifically for the purpose of excluding them.73  Louisiana’s Senate Bill 139 is representative.  It provides for parole reformation, and it removes barriers to successful re-entry for non-violent ex-felons, except for anyone convicted of a sex offense.74

California presents a particularly egregious example of governmental interference.  Although the ballot language of Prop. 57 authorized parole consideration for every person convicted of a nonviolent offense, that language was altered by the California Department of Corrections and Rehabilitations (CDCR), which added a measure to exclude all registrants, including those who had committed non-violent sex offenses.75  What constitutes nonviolence is a line-drawing contest that is playing out in the California courts.  The results to date have been unanimous – in each case appealed, the CDCR has lost.76

Denial of other benefits.  Other benefits are lost to those who have committed sex offenses for no reason other than animus.77  Louisiana, for example, developed a substance abuse probation program that provides counseling and treatment for defendants with substance abuse disorders or with co-occurring mental illnesses. However, these provisions do not apply to anyone convicted of a crime of violence or a sex offense.78

In Delaware, expungement is available through the petition process.  Yet, even though the language of the bill builds in discretion in the petition process, it statutorily excludes most sex offenses from even that opportunity.79

California’s Victim’s Compensation Fund offers another illustration of animus at work. In 2016, the California legislature reformed the Victim’s Compensation Fund to specifically exclude registrants from receiving compensation even if they fit other criteria of “victim.”80  At first blush, this “all-except-for” provision might make sense.  A rapist should not be able to recover from the Victim’s Compensation Fund for having been injured by his victim during the assault.  However, as is the failing of all blanket exclusions, the restriction is overly broad.  It precludes an offender from ever recovering for injuries, even injuries unrelated to the crime for which the registrant was convicted.  As one legislator put it, “The purpose of this bill [AB 1140] is to…deny compensation to registered sex offenders.”81

An incident in Oxnard California supports the legislator’s animus.  A deadly boat fire killed 35.82  A registrant who lost family members in that fire was statutorily ineligible for recovery from the Victim’s Compensation Fund only because he had been convicted of a sex offense.83

Finally, another snapshot of the laws reveal the obstacles registrants face upon reentry.  Louisiana House Bill 681 lifts restrictions for people who were convicted for drug offenses from receiving welfare, cash and food stamps benefits, but does not extend to people who committed violent or sex offenses under Louisiana law.84  The irony cannot be lost that registration regimes which block gainful employment and limit housing also make it more difficult for registrants to receive subsidies.

II. FAULTY ASSUMPTIONS THAT DRIVE THE EXCLUSIONS

Categorizing groups of people or behaviors is a necessary and fundamental precept of legislative drafting, and flowing from the categorization, are often burdens conclusively bestowed on one group of people over another.85  In the case of registrants, the classification is based on faulty presumptions that group all registrants together as more likely to recidivate than their counterparts.  Although legislative categorization is a staple of the drafting process, the Supreme Court cautioned in Stanley v Illinois, “Procedure by presumption is always cheaper and easier than individualized determination.”86

Unfortunately, that is the effect of this blanket exclusion.  The “all except for” provision serves as an ill-fitting one-size-fits-all attempt to exclude all registrants from the benefits of reform.87  Faulty presumptions surrounding sex offense convictions have framed the question and delivered the answer: registrants are unworthy because they continue to be dangerous.  What makes the presumption faulty – beyond the lack of individualized assessment – is that robust and valid empirical data refute the flawed message that all registrants recidivate at alarmingly high rates.

A. The Moral Panic that Overtakes the Conversation

That the myth of high recidivism rates persists is cause for circumspection.  Before this part of the article delves into the empirical studies that refute the underlying premise for registration schemes, it is important to understand its stranglehold.  Why, in the face of reputable statistics, does such a false message continue to resonate with the public and with a judicial body that values empiricism?

The answer is obvious, pervasive, and controlling.  The country is suffering from what sociologists describe as a “moral panic.”  It is a societal reaction that is wildly out of proportion to its factual predicate but is nonetheless stoked by elected officials, affirmed by courts, and relayed by the media.88  Rose Corrigan described the phenomenon in particularly vivid details.  She wrote, “Taken at face value, Megan’s Law sees a society in which sexual violence is rare, recognizable by its physical brutality, and perpetrated by mentally disturbed monsters who strike without warning or reason.  This society needs no change, just better tools to control these individuals.”89  This view of a dangerous world that needs to be controlled is impelled by societal fear.  It is reminiscent of scholar Donna Coker’s statement on the concept of Crime Logic.  Contained within the set of beliefs that animate our criminal processes is “a preference for removing individuals who have harmed others as though excising an invasive cancer from the body politic.”90

The fear is palpable.  As the court wrote in Millard v. Rankin, “The fear that pervades the public reaction to sex offenses— particularly as to children—generates reactions that are cruel and in disregard of any objective assessment of the individual’s actual proclivity to commit new sex offenses.”91

Registrants are the target of today’s moral panic,92 but they are certainly not the first.  Societal panics emerged during the HIV/AIDS epidemic directed at those with HIV,93 against juveniles who committed crime,94 and targeting those who peddled drugs.95

But, this moral panic is different according to sociologists.  Unlike the others, this moral panic is not fleeting, but seems to gain ferocity with the passage of time.96

What has become clear to sociologists is that no matter the subject matter or targeted group, moral panics generally include the following indices:

1) an elevated level of concern over the behavior of a particular group of people and the impact of that behavior on the society;

2) an escalated level of hostility towards the group of people that are engaging in the harmful or threatening behavior, who are stereotypically labeled as enemies of the law-abiding society;

3) a widespread agreement of members of the society that the threat posed by that group of people is real and serious;

4) the concern is blown out of proportion compared to the realistic appraisal of the threat, which is generally the result of presenting exaggerated numbers of crimes, victims, injuries, damages, deaths, etc.;

5) “volatility” of moral panics, causing them to burst suddenly and vanish, but not without generating fear and hostility, the so-called “cultural and institutional legacy.”97

An interesting phenomenon occurs in a moral panic: the panic inspires and adopts faulty messaging.  As noted by sociologist Kenneth Thompson, an inaccurately perceived threat or one that is blown out of proportion leads to the exaggeration and fabrication of statistics and stories designed to fuel the panic’s longevity.98  He is not alone in arriving at this conclusion.  Anthropologist Roger Lancaster wrote that the moral panic surrounding those who commit sex offenses gives rise to “bloated imaginings of risk, inflated conceptions of harm, and loose definitions of sex.”99

These observations confirm that we are witnessing what psychologists call “Confirmation Bias,” which is “the tendency to acquire or process new information in a way that confirms one’s preconceptions and avoids contradiction with prior beliefs.”100  That is not surprising when we consider the horrific high profile cases of serial child rapists seared into our minds: Jerry Sandusky, coach for Penn State football who was convicted of grooming and raping children,101  John Couey, who brutally raped and murdered nineyear-old Jessica Lunsford for whom the California registry is named,102 and Philip Garrido who kidnapped eleven-year-old Jaycee Lee Dugard and held her hostage in plain sight for seventeen years.103  It is these “pictures in our heads” that shape and filter our view of the world.104  And if we layer images on top of images, as the media incorporate and reproduce narratives of high profile cases, it is no wonder that the public believes that everyone who commits a sex offense is a predator, and why false messaging of high recidivism sticks.105

Because a moral panic inflates concepts of harm, a critical weakness is laid bare: society has no ability to distinguish true harm from that manufactured by the panic.  As a consequence, the panic has ushered in zero tolerance policies leading to absurd results.  For example, children are now labeled sex offenders106 for what a generation ago was called “playing doctor.”107  In what can only be described as ludicrous, the district attorney in Grant County, Wisconsin charged a six-year-old with a first degree felony for playing “butt doctor” with his five-year-old playmate.108  When pressed on the potential absurdity of the charge, the district attorney defended her actions with this response, “The legislature could have put an age restriction in the statute if it wanted to.  The legislature did no such thing.”109

Inability to distinguish the serious from the trivial among a range of illegal behaviors also mischaracterizes the degree of danger.  It is what Lancaster describes as “blurring the difference between major and minor crimes, real and imaginary offenses, grievous injuries and social nuisance.”110  Indeed, the inability – or refusal – to focus on only true sexual violence has accounted for a registry that includes approximately 904,011 as of 2019,111 many of whom were convicted of non-violent sexual and even non-sexual offenses.112

Two examples stand out. In both, the behavior was unlawful, but notwithstanding the panic’s hold, should not be characterized as sexual predatory behavior worthy of lifetime registration.  The first scenario concerns the conviction of teenagers for engaging in voluntary sexual intercourse with girls under a specified age.113  J.L., a fourteen year old boy, was convicted and required to register for life for having voluntary sexual intercourse with his twelve year old “girlfriend.”114  True, this kind of behavior is problematic and should not be rewarded, but to consider J.L.’s act an “aggravated sexual offense” calls into question the legitimacy of the very regime his acts triggered.115

An equally difficult case to reconcile involves the registration for life of two eighth grade boys who played a cruel and aggressive prank on two sixth grade boys.116  The older boys held the younger boys down while each perpetrator sat on one boy’s face with their own pants down, all of this to the laughter of other eighth graders.117  As one boy admitted in interrogation, “I put my butt in his face.”118

One must pause to recognize that this kind of activity – some might call it horseplay – airs in graphic detail on Reality Television.119  But assuming the acts qualified as criminal batteries, is this activity, which is seen by audiences to their delight, worthy of lifetime sex offender label and registration?120  Hardly. Yet, an inflated and distorted view of what constitutes sexual harm led the New Jersey court to draw exactly that conclusion.121

For a panic to take hold, it is not enough that there are legal decisions that affirm the public’s view of the danger.  In any moral panic, it takes other actors to spread it.  Historian Philip Jenkins traces the spread of moral panics to nearly identical messaging from political leaders and the media.122  The panic is fueled by inflammatory rhetoric and graphic storylines involving children victims.123  It will come as no surprise that in passing Megan’s Law, senators who spoke in favor of its passage supported their vote with a vivid and disturbing story of sexual abuse.124  The natural reaction for politicians to exploit the high profile case was confirmed in a fascinating study conducted of 61 policymakers across the country who sponsored sex offense bills.125  Survey results revealed that lawmakers admitted that their bills were most often inspired by a high profile case that grabbed state or national headlines.126

This is not by happenstance.  Emotionally laden rhetoric drives a moral panic.  Ideal Victims and Monstrous Offenders, which tracked the public discourse around sex offenses in the LA Times from 1990-2015, contended that “sexual predator” became an overused term to describe all sexual offenses, violent or not, and predatory or not.127  Emotionally laden rhetoric also sustains the moral panic, as observed by sociologists who were questioning why the panic surrounding sex offenders had yet to wane.128

One cannot also underestimate the ferocity of a moral panic.  Mary Huffman paints a vivid picture: “[W]hat started as a pure worry about a particular group of people is increasing with such severity that boundless fear directed at the scourged no longer bears any relation to an actual threat.”129  Fear-laden messaging that morphs into governmental sanctioned legislation comes at a tremendous cost to those targeted in a moral panic.    Registrants are ostracized and vilified and left without an opportunity for meaningful reintegration into society.130  Sociologist Cohen called those targeted in a moral panic “the folk devils,” perceived to be the manifestation of evil threatening the community.131  To combat the “folk devils,” the panicked citizens create an infrastructure of harsher sentences, targeted isolation, community vigilantism, and bars to reentry programs.132

Societal panics give communities permission to unleash their hatred.  Support by governmental adoption of registration and notification schemes gives the community a sense of agency over the fate of registrants.  Lancaster calls the exaggerated community panic “poisoned solidarity” or “mutual suspicion.”133  Sadly, it is not uncommon that those who have committed sex offenses are targets of violence.134  But even if not targeted for violence, they come under the kind of scrutiny that makes reintegration impossible.  Fearful of losing their livelihood and their homes, they live in constant fear of being outed and ostracized.135  Finally, vigilantism from panic causes people to target those who they incorrectly believe are registrants,136 or who “just look suspicious.”137

The latter is what happened to Eric Haskett, a twenty-eight year old man whose only mistake was to fall asleep for a few moments outside his date’s home because he had arrived too early to pick her up.138  As Lancaster wrote of the incident, “This innocent napping was to set in motion a chain reaction involving snoopy neighbors, community vigilantes, the Internet, various modes of surveillance (some plainly un-lawful), local police investigators, and no fewer than three FBI agents.”139

Before the confusion had cleared, three separate law enforcement agencies had investigated, neighborhood emails had circulated regarding sightings of Haskett, and Haskett had been advised to leave the area.140  A disturbing takeaway from this event is that imagined threats take precedence over discerning the truth
in this moral panic.  Witness the defiance of the group think on display as neighbors displayed a lack of remorse in their misidentification of Haskett and their role in the ensuing troubles that befell him.141  Although mischaracterizing Haskett’s actual behavior, one woman defended the actions of the community with this ominous threat, “Don’t mess with suburbia because we will chew you up and spit you out.”142

Yes, it appears we are in the throes of a moral panic.  Certainly, all the signs point to one: the weight of the infrastructure we have built to punish and ostracize offenders, the inability to admit the ineffectiveness of registries, the especially harsh treatment all offenders face post-prison, and the obstacles we have erected to bar their reintegration.  Only with this appreciation can we understand the depth of resistance to empirical data that upends the status quo.  And only with this appreciation can we understand why it is so difficult for the public to let go of the false messaging.

B. The Real Data

Statistics play the leading role in registry analysis. In effect, their use serves as a legal crystal ball; we rely on the numbers to assess future dangerousness of a specific part of the offending population.

No doubt, one could examine the use of statistical evidence with a jaundiced eye.  It harkens back to the famous quote, “There are lies, damned lies, and statistics.”143  Despite their alleged malleable nature, statistics play an important role in the law because they “summarize and clarify the nature of our complex society.”144  If we are concerned by their ability to manipulate the message, Professor Joel Best tells us the solution is “not to give up on statistics, but to become better judges of the numbers we encounter.”145

And that is where the tension lies.  Competing statistics often fight for supremacy in the message.  Consider for a moment the role that statistical evidence played in the establishment of the registration and notification regimes. Even before the United States Supreme Court weighed in on the constitutionality of registration schemes, the stage was set in New Jersey.  A terrifying event for any parent to imagine – seven-year-old Megan Kanka was lured into the home of her neighbor one afternoon where she was brutally raped and murdered.146  This horrifying tragedy motivated what became known as Megan’s Law – the first community notification statute in the country.147

Such a legislative reaction is not unusual.  A high-profile and senseless murder naturally demands action.  What is confusing however, were the empirical studies used as foundation for launching the notification regime.  In determining that registration and notification statutes were constitutional, the New Jersey Supreme Court in Doe v. Poritz endorsed studies that reported recidivism rates of sex offenders at upwards of 40% to 52%.148  But, in approximately the same timeframe, the Bureau of Justice Statistics reported a far different conclusion: “Of the 9,691 male sex offenders released from prisons in 15 States in 1994, 5.3% were rearrested for a new sex crime within 3 years of release.”149  And in a companion study tracking 272,111 former inmates who were discharged in 1994, the study found that the lowest re-arrest rates were for those previously convicted of murder or rape, while the highest recidivism rates were for offenders previously convicted of property crimes.150  Other studies during roughly the same timeframe also support low recidivism rates:151  New York reported a recidivism rate of 2.1%; Arizona 5.5%, and Ohio 8%.152

Conflicting statistical evidence took center stage in the Sixth Circuit in 2016 when it grappled with recidivism rates that were in contradiction to those claimed by the Supreme Court.  As noted earlier, in 2003, the Supreme Court in Smith asserted that sex offenders recidivate at rates that are “frightening and high.”153  By comparison, in 2016, the accuracy of the Smith assessment was questioned by the Sixth Circuit in Does #1-5 v. Snyder,154 the court writing, “The record below gives a thorough accounting of the significant doubt cast by recent empirical studies on the pronouncement in Smith that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.”155

How do we reconcile these vastly different pictures painted by the statistics?  On the one hand, according to Poritz, and later reaffirmed in Smith, those who commit sex offenses reoffend at much higher rates than their criminal counterparts.  The ability to predict future dangerousness because of those statistics became the prime justification for registration laws156 – although fidelity to that premise is in serious doubt given the lack of effectiveness of the registry.157  On the other hand, two decades of study, as referenced in Snyder offer a very different conclusion: registrants recidivate at much lower rates than is believed.158

Which message is accurate?  Professor Ira Ellman, author of Frightening and High,159 argues that the key to assessing statistical validity lies in asking the correct questions and tracking the relevant pool to predict future danger.160  His guidance to better statistical understanding is laid out in amici briefs on behalf of law professors and social scientists where he served as the primary author.161  Common themes emerge from his analysis of published studies: ensuring valid results requires a nuanced assessment of the group to be tracked, and tracking must include all relevant, but often overlooked, populations.

The pool matters.  Just because a study tracks “sex offenders” does not necessarily ensure an accurate snapshot of their future dangerousness.  That is because sex offenders are not a homogeneous unit.  Grouping them all together produces misleading results on their future dangerousness.  Put bluntly by Professor Ellman, “an average re-offense risk across all registrants is no more likely to fit the individual registrant than would the group’s average shoe size.”162  Dr. Kruegar and Mr. Shainfield agree, “Collapsing all sex offenders together into a single category and making generalizations about this diverse range of offenders . . . is likely to result in substantial mischaracterization regarding the risk of re-offending for many of these individuals.”163  To put this into concrete terms, the moniker “sex offender” applies equally to the violent and non-violent, as well as to those who have committed non-sexual offenses but who are required to register as “sex offenders.”164  That last point – that non sexual offenders are on the registry – only amplifies its bloated and disconnected reach.

A point often overlooked is that the term “sex offenders” reflects a different population than the term “registrants,” although most people reviewing the statistical results assume the terms – and therefore the pools – are the same.  Professor Ellman highlighted this misconception when he reviewed a Bureau of Justice study.165  There, “sex offenders” was the term used in the highlighted Bureau of Justice study, and although the resulting 5% may appear to be a low statistic, even that reported result may have been inaccurately high.166   The reason?  In that particular study, “sex offenders” were primarily adult, male, violent offenders released from state prisons.  While that is a valuable group to track, they comprise only a portion of those placed on the registry, many of whom, as is later discussed, do not reoffend.167

In another deep dive, Professor Ellman examined a study used by the Smith Court to support lifetime registration, and not surprisingly, he found that the summary of the study upon which the Court had relied, mischaracterized the findings.  Extrapolating the value of lifetime registration for all registrants from this study was misleading because the study had only examined a small subset of a registrant population to confirm its findings.168

Juveniles.  Another common oversight but one that alters the findings dramatically, is the failure to include juveniles who are required to register as adults.  Their exclusion from statistical results distorts those results because their presence on a state registry is not insignificant and because their reoffense rate is very low.169

Although numbers are difficult to pin down,170 experts report approximately 20%-25% of the registry is filled with juveniles who must register as adults.171  Dr. Michael Caldwell’s review of twentytwo studies found a juvenile recidivism rate of less than 5%.  In one study of 11,219 juvenile sex offenders, the mean sexual recidivism rate was slightly higher at 7% but was still six times lower than the general recidivism rate of 43%.172  Other studies similarly have found that child sex offenders do not recidivate at the rates imagined by the public,173 and when children do reoffend, they likely do so for motivations other than serial predatory tendencies.174  Zimring’s research found that “juveniles with sexually based police contacts had a high volume of non-sex contacts and a low rate of sexual recidivism during their juvenile careers, and an even lower likelihood of continuing their sexual offending behavior into adulthood.”175  To put the absence of juvenile registrants into perspective, tracking results are suspect when 20% of a registry is not factored into the statistical analysis to determine future dangerousness, and that this particular 20% has very low reoffense rates.

Studies that only track those released from prison.  It is misleading to only track those offenders who are released from prison in an attempt to extrapolate future dangerousness as to all registrants.  That is because a state’s registry includes many persons who never went to prison, either because they were placed on probation or served time in the county jail.  As Professor Ellman illustrates with the Colorado registry, juveniles and those whose registerable conviction was a misdemeanor make up nearly 25% of Colorado registrants.176  The absence of these registrants, who are not likely to reoffend, skews the results of prediction.

Years from the registering offense.  One statistical fact that has emerged from the studies is that reoffense rates of registrants – no matter the seriousness of their crime – steadily declines over the years.177   “Whatever a registrant’s risk level at the time of his or her release, the probability of re-offending declines every year he or she remains at liberty without having re-offended… [E]ven those who present a high re-offense risk at the time of their release become low risk after enough years at liberty without re-offending.”178

This statistical fact alone should animate all aspects of the conversation.  Armed with the knowledge that reoffense rates decline precipitously with the offender’s age, the one-size-fits-all approach on future dangerousness is suspect.  And if suspect, then blanket rules affecting all registrants including “all except for” provisions should be eliminated.

The hidden reality of ineffectiveness.  Buried beneath the infrastructure of registration and notification schemes is the open secret shared by social scientists: registration and notification schemes are ineffective.  Amanda Agan summed it up well after conducting myriad of empirical tests from different angles and across numerous states, “I find little evidence to support the effectiveness of sex offender registries, either in practice or in potential.”179   Agan is joined by J.J. Prescott & Jonah E. Rockoff who separated their research into the effectiveness of registration and the effectiveness of notification.180  “Importantly, we detect no evidence that notification laws curtail crime by reducing recidivism among convicted sex offenders; the estimated effect of notification is actually weaker when a state applies the law to a large number.”181

III. DEMANDING CHANGE
UNDER THE FOURTEENTH AMENDMENT

Challenging sex offense registration and notification laws under the Fourteenth Amendment has been a herculean task, one that, unsurprisingly, has been met with only modest success.182  Yet, as registration and notification schemes continue to grow dramatically with an ever more pervasive and punitive reach, it is time to ask whether there is still a rational relationship between these laws and public safety claims.  It is time to question whether these decisions should continue unchecked when they are driven by naked animus.

In an earlier article, I posed the question: “Is the time ripe for a successful due process challenge?”183  I argued that substantive due process was a fitting challenge to irrational sex offense legislation, and further that I was hopeful such a successful challenge was on the horizon.184   The year was 2012. It turned out I was wrong – at least on the second point. A successful due process challenge was not on the horizon.  However, I was not wrong on the first point.  A substantive due process challenge remains a fitting challenge to animate the conversation of the extent to which the government may use its official powers to deny its citizens of essential aspects of life that others enjoy.

So, that is where this article lands.  In this section, I argue that blanket exclusions are a denial of substantive due process because of arbitrary and capricious governmental action that is perpetrated only by full-throated animus.  Although recognizing that the climb for such an argument is steep, recent judicial developments, modest in number but not in impact, suggest substantive due process may provide registrants with a viable path for relief.

Substantive due process was “intended to secure the individual from the ‘arbitrary exercise of the powers of the government,’”185 but its extent has been the subject of considerable debate.186  The difficulty lies on two interwoven fronts: the scope of substantive due process and the test for its review.  Successful substantive due process challenges have generally required strict scrutiny analysis, which are triggered only by a fundamental interest.  I say “generally” because there have been notable exceptions.187

Yet, its limiting principle is clear.  Signaling extreme reluctance to expand notions of substantive due process, the Court, in Washington v. Glucksberg,188 held firmly to the belief that “fundamental rights are those which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty.’”189  Despite the extreme burdens they face, constitutional challenges by registrants have only been met with stony silence.190

It is not difficult to understand why registrants have largely failed in the courts.  Without a fundamental interest to anchor strict scrutiny analysis, conventional thinking suggests that the traditional rational basis test offers little hope for registrants.  A traditional rational basis review generally presumes that legislation is constitutional provided it bears a rational relationship to the legislative purpose.191  Indeed, quite cynically declared by one legal scholar, the rational basis test was “tantamount to declaring the legislation was constitutional.”192

But there looms an additional obstacle to a successful challenge.  Generally, the government “has no obligation to produce evidence to sustain the rationality of a statutory classification.”193  Instead, the burden rests with the complainant to “negative every conceivable basis which might support it.”194  So cemented is this view that the Supreme Court underscored it with this statement, “In other words, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”195  Moreover, because the legislature does not have to articulate its reasons for enacting a statute, the Court finds it irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.196  Criticizing this posture, one commentator wrote, “[O]nly under the rational-basis test do judges routinely decide cases on the basis of government-favoring speculation and conjecture rather than admissible evidence. . . .  Only under the rational-basis test do judges expressly refuse to inquire into the true ends that legislation is calculated to achieve.”197

At first blush, blanket exclusions look like such a legislative choice – sex offenders are differentiated from other felons for benefits to which others are entitled.  Arguably that is the legislative choice.  When combined with the panic that has enveloped the laws’ development, employing a “relatively relaxed standard”198 that does not demand governmental evidentiary burden dooms the challenge.199  The reason is clear: courts have been able to opt out of the scrutiny needed to question whether the laws are actually rationally related to the policy they are designed to serve.200

A. Unreasonableness and Arbitrariness

Even within the current structural hierarchy of judicial review, a deferential rational basis test is not without limitations on legislative action.201  Justice Werderger so emphasized when she dissented in Johnson v. Department of Justice:

[D]eferential as it is, [the rational basis test] nevertheless requires real scrutiny of the relationship between a classification and the possible legislative goals.  We have described the necessary inquiry into that relationship as a serious and genuine one, in which the court seeks plausible reasons for the classification, resting on a reasonably conceivable factual basis.202

Justice Werderger was correct.  And so was Judge Batchelder in Does #1 – 5 v. Snyder when she refused to insulate the government from producing evidence to support its extensive residency and presence restrictions, writing, “Intuitive as some may find [the policy for these laws], the record before us provides scant support for the proposition that SORA in fact accomplishes its professed goals.”203  Scant is a revelatory term.  Used again a short time later in the opinion, the Snyder opinion called into question the presumption of legislative validity that cloaks the government’s failure to produce sufficient evidence to show a rational purpose.204  Powerful was the admonition to the State of Michigan, the court rebuked the State when it wrote, “Nor should [the jurisprudence] be understood as writing a blank check to states to do whatever they please in this arena.”205   It is reminiscent of the Supreme Court’s own admonishment to the government in Gonzales v. Carhart, “Although we review congressional factfinding under a deferential standard. . . [t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”206  In a striking about-face, Michigan Attorney General Dana Nessel filed an amicus brief in support of petitioners.207  In agreement with the court, the brief stated, “SORA’s burdensome requirements and its devastating consequences for noncompliance are untethered to the purpose of protecting the health and safety of the public.”208

Despite general deference to the legislature, Snyder and Carhart remind us of the importance of judicial oversight.  Indeed, legislation should fail when it cannot withstand examination of the reason for the governmental intrusion.  Lawrence v. Texas, a landmark Fourteenth Amendment case, serves as the leading example.209  In one declarative swoop, the Court struck Texas’ sodomy law, writing, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”210

Think arbitrary.  Think shoplifting.

Arbitrariness is key to a successful due process challenge.  In re Taylor may be instructive on the development of such an argument challenging “all-except-for” provisions.211  In striking down blanket residency restrictions in San Diego, the California Supreme Court concluded, “[The law] thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.”212

Who the petitioners were in Taylor matters – all were on active parole.213  Yet, despite their status, and even employing the rational basis test, the California Supreme Court declared the San Diego residency restrictions arbitrary and unreasonable governmental action.214  True, the right of privacy is deemed a fundamental right under the California constitution and could have been used to trigger a strict scrutiny analysis of the restrictions.215  Nevertheless, the court avoided the thorny question of whether to implicate a fundamental right in its analysis by declaring, “We are persuaded that blanket enforcement of the mandatory residency restrictions . . . cannot survive even the more deferential rational basis standard of constitutional review.”216

Interestingly, the term substantive due process is nowhere to be found in the Taylor opinion.  Instead, and quite artfully, the court emphasized the concept of liberty217 and injected language of arbitrariness employed under the rational basis test218 to reject the blanket residency restrictions.219   Weaving the two themes together, the court wrote, “[A]ll parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.””220

The underlying reasoning of Taylor harkens back to Justice Kennedy’s opinion in Lawrence, where he accomplished what few have done.  He removed the artificial barriers that separated three interrelated categories of protection: substantive due process, procedural due process, and equal protection to overturn a Texas law prohibiting sodomy.  The groundbreaking case is filled with bold assertions of Fourteenth Amendment protections – in particular, liberty, but interestingly, without referencing a specific clause in it or particular elements of it.221

But it cannot go without comment that Lawrence also foreshadowed the burdens of registration and notification schemes, which the Court upheld as constitutional in the same term as Lawrence.  Only in retrospect was its full import noted when Justice Kennedy wrote:

The stigma the Texas criminal statute imposes, moreover, is not trivial.  Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law.”222

To be sure, Lawrence is different.  The population is not the convicted.  The liberty interest to be protected – benefits of criminal justice reform efforts – are not guaranteed.  Yet, there is guidance to be gleaned from Lawrence.  Like Taylor after it, opinion drafting is enlightening.  Whether the Court employed a deferential rational basis test or one “with bite,”223 it recognized that unreasonableness of the Texas’s legislative action controlled the constitutional outcome.  Indeed, so dismissive of any possible rationale for the law, the opinion offers one sentence: “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”224  Although the opinion as crafted had its detractors,225 the decision breathed life into the historical view that the Fourteenth Amendment as a whole “ha[d] transformed America by providing the basis for the creation of a much more just and inclusive society.”226

On that, the parallel seems clear.  The Fourteenth Amendment’s overarching theme must be respected.  Whether we are informed by Lawrence or Taylor, governmental intrusion that does not have a rational connection to its public purpose should stand.  As this article has demonstrated, the “all except for” provision is an arbitrary exercise of governmental power because there is no plausible explanation for excluding all registrants from all benefits of criminal justice reform.

B. The Role of Animus

Without accurate empirical evidence to bolster the exclusion, the emptiness of the State’s argument must be revealed for what it is: boilerplate language designed to feed the community’s panic.  What we are left with is animus.  On that topic, Randy Barnett writes, “It cannot be enough that a legislature claims its acts are within one of its just powers. Such an inquiry must include the question of whether such an assertion is being made in good faith.”227  But, because illicit motives might be difficult for the challenger to prove, Barnett argues that arbitrary and irrational decisions serve as evidence of bad faith decision making.228

The moral panic surrounding sex offenses is our lens through which we must judge whether there is bad faith decision making.  It is frustrating to identify discriminatory governmental behavior but not believe there is a legal path to rectify it.  In Romer v. Evans, we find that path.229  Although it was an equal protection challenge, the Court’s language transcends that narrow analysis: even under a rational basis review, laws based on animus will not survive constitutional scrutiny.230 “[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”231

Legitimizing private animus should not be condoned.  That is the lesson from Palmore v. Sidoti, which found a constitutional violation when a family law judge adopted the community’s bias regarding interracial marriage.232  It raises the question to what extent moral panic targeting registrants has morphed a community’s private animus into legislative enactments.

More egregious than the government adopting private bias is the government purposely intending to cause harm to a group of people.  There too, the Court has been fixed and resolved.  It struck down a federal food stamp program provision that was specifically altered to deny benefits to groups of unrelated people living together, the Court.233   “The legislative history underlying the change indicated that that amendment was intended to prevent so called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program.”234  Despite a rational basis review, Congressional animus controlled the result.

Think animus.  Think Victim’s Compensation Fund.  The comment reported earlier in this article from a California legislator illustrates well the animus directed at a group of people: “The purpose of this bill [AB 1140] is to . . . deny compensation to registered sex offenders.”235

CONCLUSION

Blanket exclusions are but a small piece of a larger tapestry of legislative and community animus targeting registrants.  Fueled by inaccurate data and community panic, “all except for provisions” only further punitive measures designed to isolate and marginalize this community.  Saying something is true does not make it so.  And saying it louder does not make it truer.

Note:  All 235 footnotes can be found in the source PDF document here.

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