This is part three of a four-part series that looks at the Supreme Court case Smith v. Doe. It was written by my friend, K.S. and all views and opinions are those of the author and not necessarliy that of #BackSoSoon.
This brings us to the main holding of Smith, that registration as a sex offender was not punishment, and thus, the Ex Post Facto clause created no bar. After all, using the same logic as the last section, the registry imposed “no affirmative disabilities” outside of the conviction itself. This is now the primary issue of contention of challenges (which we will address next). However, even given the registry at issue then, it was incorrect.
In determining that the law didn’t impose any disabilities, the Court isolated and examined only the registry components. The Court pointedly refused to evaluate the punishment involved for failing to fulfill one’s obligation. A law without a consequence is not a law, but a suggestion. It is impossible to truly critique a law by examining one provision (which is why case law states it is not to be done). So, by declining to look at the punishment, the Court actually refused to deal with the law at all. Prison is a rather severe consequence; since the registry hangs that over the registrant’s head like the Sword of Damascus, it is flatly incorrect to say that the registry involves no disability. And it certainly is neither minor nor indirect.
The registry back then was a relatively new invention. Though the Court has elsewhere acknowledged such novelty is the surest sign of Constitutional problems, that rule was ignored here. Uniqueness aside, the registry did, in fact, bear resemblance to two historical forms of punishment: shaming and probation/parole. Ultimately, the Court rejected these comparisons; however, the reasoning was highly flawed.
Supposedly, shaming involved pain, and physical confrontation. Absent that, no dice. Branding and the pillory did involve pain, or at least discomfort. As anyone who has watched “The Scarlet Letter” knows, not all shaming was painful. Offenders might have to hold signs, sew letters into their clothing, put notice on their homes, or any other number of degrading, but not harmful, practices.
Whether the notice is posted online or on the offender or in the public square doesn’t matter. It’s the effect, not the form, that decides the claim. True, it may not be as bad for the offender, on the basis of random encounters alone, to have notice online instead of on his chest. On the other hand, placing all of his information online certainly makes it easier for would be harassers to track him down. Perhaps, the State truly does not mean for this to occur, but so what? Most drunk drivers do not mean to kill someone in their car,; that lack of intent is cold comfort to the injured or dead. This consequence is both a logical progress of the registry and easily foreseeable. At best, this gives the State liability for negligence or recklessness. That the “Does” could point to evidence that this was already occurring in the registry’s infancy means that it was far from the “hypothetical” the Court dismissed it as.
The denial of the comparison to parole or probation was no better. Since the Smith registry involved no conditions (except for the reporting requirements), and probation does, they are clearly different! Not all probation, involves conditions, however; many forms only require periodic reporting. So, the early registry was little different, and any differences were in degree, not in type. More important than the lack of conditions, the individual on the registry is in the same shoes as the probationer; he has conditional freedom-not absolute-based on arbitrary rules applying only to him, and only because of his previous crime.
Smith was an outcome driven case, cramming a square law into a round legal doctrine hole. In a hat trick of poorly reasoned, pretzel twisting ramblings, the Court ignored reality, centuries of common law, and simple common sense to protect the children from a thread that never truly existed. Smith was wrong when it was decided, and has not improved over time. The only saving grace of that case is that it is easy to refute, and today’s registry fails its test.
#BackSoSoon is a blog dedicated to helping sex offenders successfully reenter back into society. Our Corrlinks address is email@example.com