The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.

The right to due process can be found in the Fifth and 14th Amendments of our Constitution. Due process is commonly understood to include the presumption of innocence, the right to a fair trial and the right to counsel — ideas that ensure a defendant is treated as fairly as possible in our adversarial criminal justice system. It can be “gauged by its aim to safeguard both private and public rights against unfairness.”

Despite what some courts have found, the current requirements of SORNA violate due process, specifically the tenet of presumption of innocence, or the idea that a person is innocent until proven guilty. Each state differs in how it implements SORNA, so an individual’s length of registration varies by state. For example, all sex offenders in California and South Carolina register for life, regardless of the crimes committed. By demanding post-detention reporting for up to a lifetime, the court is presuming that an individual has the propensity to commit a certain type of crime in the future and therefore must be scrupulously supervised.

Courts have addressed this concern when the individual required to report is a minor. The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

Jesse Kelley (@JessdKelley) is a policy analyst and state affairs manager for criminal justice at the R Street Institute, a nonprofit group aimed at promoting limited government in Washington, D.C.


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7 thoughts on “The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal

  1. Right now in Wisconsin there are people who are on the S.O. registry that are on GPS monitoring and are homeless due to this list. Anyone else who is on this list and were wrongly accused and convicted have to try finding places where they don’t do criminal background checks. So in lies the point where I and my fiancee are. We found a place where we were able to move to only to have, within a month, the registry people come knocking on our door and precede to talk to us while they are in the hallway when people in this building are nosy and gossip. I have tried everything to reach out to the governor of Wisconsin and the department of justice for Wisconsin and was told by the d.o.j the governor will not pardon people who are innocent.

    1. I hear you. We are in the same position in another state. The house we rent is a slum. I solely support us financially because nobody will hire him. We are constantly harassed online and currently I have a stack of threats printed to turn in. The registry and system for trials absolutely suck. My husband is innocent, and nobody cares.

  2. We live in Alabama where things are beyond strict. Right now my husband is living in an extended stay hotel (dubbed the S.O. motel) while me and our 3 children reside at his parents. The home is too close to a school; also a foster family (crazy but true). We were evicted from our last residence after he took a plea to avoid a 10 yr prison sentence for simply sending a provocative picture online to a 16 yr old claiming to be older. He was just released from his 3 month jail sentence and finding a home has been impossible. Once rental companies or individuals renting their homes find out he is an offender they slam the door in our faces. Our 7 yr old has been teased and I have 2 daughters from a previous marriage who my husband has raised for 10 years who cannot be around him anymore. My ex-husband was hell bent on keeping them from him even though he has done nothing but care for them like his own. Everyday my husband talks about committing suicide; claims it would be easier for us all. I’m at my wits end. This is just the beginning of it all for us. The registry is ridiculous and completely unconstitutional. You get less punishment for murdering someone.

  3. And on a further note, the officer he has to go see when he registers called him a few days ago asking questions as to where his family was living. When he told him the reason why we are not together he was told that if they sent a police officer to the home we reside in & find him there for longer than an hour, he will violate him for residing in a school zone. Basically he isn’t even allowed to visit with his family; his wife and kids or his parents. I’ve not found this rule anywhere in the guidelines. They are just finding ways to harass him and make him isolate himself from everyone. How is this fair or even right? Can he not even be with us on Christmas morning? He’s terrified to even leave his motel room. Something HAS TO CHANGE but I fear by the time it does he will have alreadu taken his own life. It seems like thats what law enforcement wants at this point.

    1. Melony – does he have any other supporters that he can talk to and do things with like meeting for a meal? How much longer is he on paper and what city are you in? We can ask some of our Alabama members to reach out to you.

  4. I too am a s.o. luckily I have no wife and child to suffer when I am gone. I sympathize with all of you very much. It is unconstitutional here in South Carolina too. Especially Cherokee county. I consider killing myself everyday because of this list. I too feel like that’s what everyone, including the state wants. Death or prison is the only fate society will allow those of us unfortunate enough to bare the mark of s.o.. I am currently facing a probation hearing over money I am struggling to pay. They say they would not lock me up again for money, but God knows what they may pull out their butts when going on a social media or dating site, having a ragged old playboy in the closet, or being to close to a school or daycare can get you arrested. Good luck. I hope things get better for your family.

  5. Hope things get better for you all. I am a registered s.o. too. I think of killing myself everyday. I told my p.o., told my court ordered counselor, the physiologist he sent me to in the same building, my family, no one cares. Like you say it’s what they all want. I have chest pain from worry and fear everyday now. I am facing probation violation because I am struggling to pay fees. I feel constantly hated and under fire. I am not a violent offender or a pedophile yet I am labeled like a predator. It literally makes me sick. Still no one ever even hears any proposal to change it even a little. They all use the same old story, that’s unfortunate but you can see how it protects kids right? Most people on that list are child molesters and messed up people so overall it’s still good for us. I disagree

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