Full Document: http://www.hastingslawjournal.org/wp-content/uploads/2012/04/Carpenter_63-HLJ-1071.pdf
The Evolution of Unconstitutionality in
Sex Offender Registration Laws
Catherine
L. Carpenter* and Amy E. Beverlin**
More is not
always better. Consider sex offender registration laws. Initially anchored by
rational basis, registration schemes have spiraled out of control because
legislators, eager to please a fearful public, have been given unfettered
freedom by a deferential
judiciary.
This Article does not
challenge the state’s legislative power to enact sex offender registration
laws. Instead, this Article posits that, even if sex offender registration
schemes initially were constitutional, serially amended sex offender
registration schemes—what
this Article dubs super-registration
schemes—are not. Their emergence demands reexamination of the traditionally
held assumptions that defined original registration laws as civil regulations.
Two intertwined causes
are responsible for the schemes’ constitutional downfall. The first is a
legislative body eager to draft in creasingly harsh registration and
notification schemes to please an electorate that subsists on a steady diet of
fear. When combined
with the second cause, a Supreme
Court that has yet to signal much-needed boundaries, the ensuing consequence is
runaway legislation that is no longer rationally connected to its regulatory
purpose. Ultimately, this Article is a cautionary tale of legislation that has
become unmoored from its
constitutional grounding because of its punitive effect and excessive reach.
* Professor of Law, Southwestern Law
School. The authors wish to thank Dean Bryant Garth
and Vice Dean Austen Parrish of
Southwestern Law School for their support of this scholarship. We
are also grateful for the valuable
feedback we received from Professor Alexandra D’Italia and for the
research assistance of Tannaz
Hashemi and Michael Morse.
** J.D. Candidate, Southwestern Law
School,
2012
. I would also like to thank
Professor
Carpenter for the opportunity to
collaborate with her on this piece and for her guidance throughout
the writing process.
Commentary: First let me thank the writers of this very well researched article, but it is exactly this type of article that gives me hope for the future. It appears to me that the hope for the reformation of sex offender laws across the United States lays in the courts.
Why do articles such as this give me so much hope? It's because it's published in a law journal and is by far not the first such article I have seen circulating within the law community; and where do our appellate judges come from? They come from within the law community.
Here is the real question; when will some of these courts begin deciding appeals on arguments that matter? I see so many cases that are raising constitutional questions, but are being decided in the plaintiff's favor on non precedence settings grounds without ever reaching the more important constitutional questions. Is it a question of judicial cowardice? It seems to be in my eyes, becoming the 1200 lb. gorilla in the room that can't be ignored much longer.
What we are in real need of in this country is for some of these appellate judges to start manning/womaning up to stop passing the buck and begin making the tough decisions based upon the constitutional questions within these cases so that they can proceed to the Supreme Court of the United States if necessary where they can make the final constitutional determination. However, up unto this point, not even the SCOTUS has been willing to accept a case that will put a dagger into the heart of many of these pile on laws that appear to be patently unconstitutional.
There is a little hope I think with the pending United States v. Kebodeaux case. I know it's not going to be the be all end all, but if the SCOTUS upholds the U.S. 5th Circuit's ruling, it will help to put a fallacy to sex offender registries as a whole, because of how many people will be removed from the registries, which will mean they are no longer serving (not that they ever were) their intended purpose of protecting the public.
Maybe Kebodeaux will be the case that starts the ball in the direction it needs to roll to begin to put an end to many of these laws that are damaging the lives of so many people, in many cases, needlessly.
All this aside, it is within the courts that I see progress being made in the curbing of these onerous and unconstitutional laws which lawmakers of both parties seem to be all too willing to continue to pass so that they can appear to be tough on crime as part of the vicious circle of the press, public outrage and lawmakers which seems to just continue to rotate like a gyroscope with no end. I'm here to tell you, it's time for someone to stop the gyroscope and bring some sanity to the table; that someone needs to be the courts.
Chuck
Commentary: First let me thank the writers of this very well researched article, but it is exactly this type of article that gives me hope for the future. It appears to me that the hope for the reformation of sex offender laws across the United States lays in the courts.
Why do articles such as this give me so much hope? It's because it's published in a law journal and is by far not the first such article I have seen circulating within the law community; and where do our appellate judges come from? They come from within the law community.
Here is the real question; when will some of these courts begin deciding appeals on arguments that matter? I see so many cases that are raising constitutional questions, but are being decided in the plaintiff's favor on non precedence settings grounds without ever reaching the more important constitutional questions. Is it a question of judicial cowardice? It seems to be in my eyes, becoming the 1200 lb. gorilla in the room that can't be ignored much longer.
What we are in real need of in this country is for some of these appellate judges to start manning/womaning up to stop passing the buck and begin making the tough decisions based upon the constitutional questions within these cases so that they can proceed to the Supreme Court of the United States if necessary where they can make the final constitutional determination. However, up unto this point, not even the SCOTUS has been willing to accept a case that will put a dagger into the heart of many of these pile on laws that appear to be patently unconstitutional.
There is a little hope I think with the pending United States v. Kebodeaux case. I know it's not going to be the be all end all, but if the SCOTUS upholds the U.S. 5th Circuit's ruling, it will help to put a fallacy to sex offender registries as a whole, because of how many people will be removed from the registries, which will mean they are no longer serving (not that they ever were) their intended purpose of protecting the public.
Maybe Kebodeaux will be the case that starts the ball in the direction it needs to roll to begin to put an end to many of these laws that are damaging the lives of so many people, in many cases, needlessly.
All this aside, it is within the courts that I see progress being made in the curbing of these onerous and unconstitutional laws which lawmakers of both parties seem to be all too willing to continue to pass so that they can appear to be tough on crime as part of the vicious circle of the press, public outrage and lawmakers which seems to just continue to rotate like a gyroscope with no end. I'm here to tell you, it's time for someone to stop the gyroscope and bring some sanity to the table; that someone needs to be the courts.
Chuck
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