Wrong to Register Pedophiles

¶ … direct exposure to the criminal justice system. We see cops and robbers on television programs and in the movies, perhaps have to interact with the police ourselves when we get a speeding ticket or when our house is robbed. These encounters are likely to leave us with the impression that the system is generally a just one, one in which the guilty are in fact punished sufficiently but not overly for the crimes that they have committed while the innocent are set free.

However, in reality the nature of justice is often far more ambiguous and complex than the picture presented on television would suggest: The borders of guilt and innocence - of crime and punishment - are far greyer than many of us would like to believe. One of the areas in which this is most obvious is in the ways in which the criminal justice system - and society at large - addresses the problem of sex offenders.

Every state in the United States now requires anyone convicted of (or pled guilt to) a "sex offense" to register with local law enforcement officials after he or she is released from prison or jail or after the plea has been accepted. Members of the public have access to this registration information, which usually includes both a photograph of the offender as well as his or her address. The U.S.

Supreme this spring upheld the constitutionality of such laws, which: require convicted sex offenders and certain other types of felons released from prison to register with local authorities. Such information is typically available to the public through print and Internet sources (http://www.cnn.com/2003/LAW/03/05/scotus.sex.offenders/). Sex offender registration laws have been challenged on the grounds that they constitute a second punishment of those who have already "paid their debt to society" through prison or probationary terms.

Such a secondary punishment in addition to the prescribed original punishment would (if it were indeed deemed by the courts to be a second punishment would be in violation of the Constitutional protection of "due process" because such registrations treat everyone in a particular class as being a continuing danger to society without any attempt to determine if this is in fact true of any particular individual. The protection of "due process" is perhaps the most important general protection offered to U.S.

citizens outside of those in the Bill of Rights. It is one of the elements of the Fourteenth Amendment, which was ratified in 1868, and one of its provisions forbids any state to "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Both the "due process" phrase of this amendment and its "equal protection" phrase have proved fundamental to a great deal of legislation since the Amendment was ratified.

In its March 2003 review of two sex offender registration cases, the U.S.

Supreme Court argued that the registration of sex offenders is not a question of punishment or indeed of legislation (and so not subject to the due process requirement) but is instead a question of regulation: Writing for a 6-3 majority, Justice Anthony Kennedy said: "Our system does not treat dissemination of truthful information in furtherance of legitimate governmental objection as punishment." And Kennedy noted, "The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender" (http://www.cnn.com/2003/LAW/03/05/scotus.sex.offenders/) We should note at this point why it is that sex offenders are required to register.

The first reason (and this is the one that is usually cited in public debates) is that sex offenders are likely to commit future crimes in the future and so members of the public have the right and even the need to know if there is a sex offender living in their neighborhood. The following reason given by the state of Kentucky is typical of such justifications for sex offender registration laws: Unfortunately, many convicted offenders do re-offend.

There is an overriding public interest and need to ensure the safety of the public by providing registered offender information. It is important to note that not all criminal offenses require registration with the State Police, only those covered by the statute (http://www.kentuckystatepolice.org/sor.htm). There is in fact a large body of supporting evidence that sex offenders are likely to commit future acts of the type that they already committed.

(Of course, it is the case that there is a high rate of recidivism for many categories of criminals). Whether sex offenders are likely to commit future crimes is not the key question that must be considered in terms of registering sex offenders. The question instead is whether such registration laws are in accord with the fundamental principles of American Constitutional law and whether such registration laws are in fact helpful.

One could argue that when the Supreme Court has ruled that a law (or a class of laws, in this case) is constitutional, that that is the end of the debate, but of course this is not true. In the Supreme Court's decision this past week on the constitutionality of the Texas sodomy law, the court explicitly reversed one of its own decisions made during the 1980s. There is in fact a significant question as to whether or not such laws are constitutional because they cover a range of crimes.

Convicted offenders in some but certainly not all of these categories are likely to be a danger to society. That "but certainly not.