Reexamining Smith v. Doe (Part Four)

Editor’s Note: This is the final part of the series where we have reviewed the Supreme Court case of Smith v. Doe, in which is ruled the sex offender registry constitutional. Last Tuesday (Oct. 2), the Supreme Court heard another registry case in Gundy v. United States. We are in the process of reviewing the transcripts from the oral arguments and hope to have our analysis done by next week.

Smith stands as proof that public perception and hysteria shapes judicial review. And, once the Court decides a case, no matter how transparently false the basis, getting them to reverse their error is problematic. Fortunately, though this is a terrible case, desperately in need over overturning, its faulty logic can still be used to roll back some of the damage of the registry, as cases like Doe v. Snyder show us.

Unlike the registry in Smith, today’s registry is a plethora of restrictions and affirmative disabilities. The “hypothetical possibility” that the Court derided so much is now an inherent feature of the law. Many local or state registries actually prohibit registrants from finding meaningful jobs or housing and public officials often exert pressure on those who would otherwise assist offenders into backing off. The registry today unquestionably contains conditions.

Thus, under the rationale of Smith, today’s registry is undoubtedly punishment. The minor differences the Court relied on have vanished and the treatment of sex offenders is little different than the shaming punishment of old an an extended lifetime term of probation. This opens it up to a challenge under the Double Jeopardy, Due Process, Cruel and Unusual Punishment, Ex Post Facto and Bill of Attainder clauses. Savvy lawyers, and non-ideologue judges, are already raising this point. “We were told: if it becomes what we have here, it is unconstitutional. It’s time to fix it.”

Nor can it be pretended anymore that the registry doesn’t impact basic rights. Numerous Constitutionally protected rights are impinged or flat out removed by the registry. So the laisse faire half-hearted review of random civil legislation gives way to the more exacting strict scrutiny that Constitutional rights gets, as we saw with Packingham v. North Carolina. Whatever claims are made-such as that sex offenders have recidivism rates and are dangerous-then have to be substantiated; they cannot simply be accepted as true.

Once the State has intruded on rights, it is now on the powers that be, not the offender, to prove their case. The underlying basis has to be true. The deprivation has to be directly related to a legitimate societal goal. The solution must actually address the problem. The State must not sweep in 95% more people than needed or needlessly burden rights.

In short, the registry will fail every step of the test.

Smith acknowledged that the registry likely had Constitutional flaws. Instead of taking that statement as encouragement to keep trying, the legal professional simply gave up, with a few lawyers trying the same exact tact that had just failed to pretend they were fighting the food fight. Going forward, we need to not only distinguish the new burdens from the old, but start laying the ground work for overturning Smith.

This means lawyers need to stop conceding that the State’s purpose behind the registry is valid. It is not. The States have known all along that what they are doing is invalid and that their case is based on misinformation. Countering pleas for emotional rulings with the facts and the admissions in the cases upholding the registry is essential. Explaining that the registry doesn’t make sense, even on paper, is the proper return strategy to vague Governmental claims of protecting children, or showing that the “threat” doesn’t exist. Smith, and all the cases built upon it, are fundamentally infirm. Only by actually confronting and refuting these errors, not avoiding and hiding from them, can we hope to correct course.

#BackSoSoon is a blog dedicated to the successful re-entry of sex offenders back into society. Our Corrlinks address is

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