Reexamining Smith v Doe (Part I)

Editor’s Note: This is the first of a four part series written by K.S. in regards to reexamining the Supreme Court case Smith v Doe in which it ruled the sex offender registry constitutional. Beginning next month, the Supreme Court will hear a case called Gundy, in which it will look at the Sex Offender Registration and Notification Act (SORNA) and determine if Congress improperly delegated the authority to the attorney general to make rules and regulations regarding SORNA’s implementation and execution. Also note, all views and opinions expressed in this article are of that of the author and not necessarily those of #BackSoSoon.

In the past couple of years, several high profile cases have begun chipping away at the formerly impenetrable facade of the registry. These record wins have (rightfully) encouraged others to begin attacking various parts of the structure erected on the backs of former offenders for the past 20+ years. While many of these cases seek to distinguish the challenges at issue from the “original” or “legitimate” registry-with varying success-any meaningful review must actually come back to the Supreme Court’s case of Smith v Doe, which put a rubber stamp on the registry, and show that this whole scheme has been built on lies and shaky legal logic from the beginning. Until we acknowledge we started from the wrong place, only then do we have a chance of correcting course.

So it is important then, to acknowledge what Smith is and what it is not. It is not legal scrutiny of a challenged law. Instead, it is judicial abdication of enforcing the Constitutional rights of others because they were bad people. In other words, the Court decided sex offenders did not deserve legal protection or correct application of the law.

While we like to pretend (or hope) that judges (especially those on the Supreme Court are paragons of sober deliberation, they are just as likely to be swept away by public sentiment, prejudice, or irrational fear as anyone else. Deliberately misled by public officials at both the state and federal level, the Court operated under the belief that sex offenders had insanely high rates of recidivism and escalation, making them threats to children. Only by throwing the Constitution out the window and creating new rules for these horrendous individuals could the Court protect society. So the Court approved coerced “therapy”-in reality, a way to compel self incrimination to crimes real and imagined, with increasing penalties-, and civil commitment-a way to increase the proscribed punishment without all the annoying safeguards of due process. The “danger” made this ruling a done deal.

There have been numerous articles written explaining this error, and showing sex offenders actually have low recidivism rates. The New York Times laid the blame for this deception at the feet of the DOJ in a well written series. But, while it is true that the Court was deliberately misled, they were more than willing to play along, and suspend disbelief. This is not to take anything away from the fine researchers who have worked so hard to debunk this myth, but one need go no farther than Smith to see the claim is untrue. With the evidence in front of them, the Court could only have been misled if they wanted to be.

The very statistic that the Court has based the “frightening and high” recidivism claim on admitted that its 80% reoffense rate was obviously exaggerated. Moreover, the same source readily championed the idea that such offenders were easy to treat (mainly because he rain that treatment, so the claim was in his best interests). One would not expect this from someone who is actually a risk to the public.

Bizarrely, Smith is full of facts that undermine its central thesis-that sex offenders are such a drastic threat that they need constant monitoring. The Court opinion states that sex offenders are arrested less than any other type of offenders. Even those who are arrested again are not rearrested immediately, but often go decades before reoffense. Though there has never been any evidence of this sleeper agent model of reoffense, accepting it as fact is still not helpful for this theory. Obviously, people who control themselves and slip after a decade are less of a threat to society than those who are immediately released a commit a dozen felonies. Worse, none of the defendants in Smith (and, indeed, it was grudgingly acknowledged, most offenders) have not committed dangerous offenses. As a bizarre coup de grace, the Court even showed that the registry was unlikely to stop sex offenses, as the majority of known reoffenses occurred well away from where the offender would have to register.

Given these “facts”, the Court simply could not have believed its own hype. Yet, the Court has become so wedded to its own infallibility, in a sort of truth by repetition, that even when it recently admitted that recidivism is low, a whopping 5%, it still felt the need to repeat its nonsense about high rates. Of course, with or without context, 5% is a low number, but the Court is so adverse to admitting error that it would contradict itself twice in a sentence to avoid it.

This is the basis of Smith, a complete fantasy. With such a false foundation, it should be no surprise that the legal analysis is no better.
***#BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks address is***

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