A Brief Moment Of Compassion For “Sex Offender’s” Rights
December 13, 2016 (Fault Lines) — Courts are starting to realize continued punishment of those labeled “sex offenders” brings lasting consequences far beyond having to register yearly and avoiding contact with children. Federal courts are taking active steps to mitigate the problems “sex offenders” face daily.
The latest rulings favorable to those with the stigma of sitting on sex offender registries come from Indiana and North Carolina, where laws barring a registrant from “child safety zones” were deemed unconstitutional for vagueness. Now the stage is set for the Supreme Court to halt this forward motion of progress, so let’s enjoy the good news while we can.
The Northern District of Indiana found unconstitutional Hartford City, Indiana’s ordinance barring “sex offenders” from entering designated “child safety zones” or loitering in them after Bryan Valenti sat in his brother’s car. This car was parked in front of Valenti’s brother’s home, which coincidentally happened to be across the street from a school. Valenti allegedly committed a sex offense twenty-eight years before the citation, and the Hartford City ordinance prevented him from taking his daughter to the library, going bowling with family, or voting at his preferred polling location. A $200 fine for sitting in his brother’s car was the straw that broke the camel’s back, and sent the case to federal court.
Judge Theresa Springmann held Hartford City’s “child safety zone” ordinance unconstitutional on numerous grounds. It was vague enough to violate Bryan Valenti’s due process rights, since in its current form no one could reasonably understand when they were violating the law. It also violated Indiana’s constitutional prohibition against ex post facto punishment. Finally, without allowing for exceptions, Judge Springmann held the ordinance’s punitive effect outweighed its intended regulatory purpose. The law was bad, and Judge Springmann made an excellent call.
Meanwhile, in North Carolina, the Fourth Circuit Court of Appeals held a statute barring sex offenders from places “where minors gather” or where activities involving minors might be “regularly scheduled” unconstitutionally vague, as the wording failed law enforcement and alleged offender alike in understanding when a violation occurred. It also noted the indiscriminate scope of the law, and found a potential First Amendment conflict if the statute barred someone on North Carolina’s sex offender registry from attending their preferred place of worship. North Carolina could not produce a shred of evidence that their “300 foot rule” served the state’s “legitimate interest in protecting minors from sexual assault.”* This is another good ruling, one that peels back the notion laws preventing alleged “sex offenders” from being in a certain place serve no purpose but punishment.
Don’t get too excited by these developments. Two different circuits ruling laws preventing sex offenders from entering or “loitering’ in certain areas is a good development. While it’s nice to see courts in different areas recognizing the punitive nature of laws prohibiting those placed on a registry for an offense as mild as public urination from being in “child safety zones,” other areas have yet to weigh in on the issue. All it takes is one circuit oozing with caution “for the good of the children” to hold an ordinance like the ones in Indiana and North Carolina constitutional and a split in authority can occur. When that split occurs, the issue has one final court ready for its examination. That would be the “most dangerous branch” of our government, the United States Supreme Court.
Our current Supreme Court counts among its ranks a man who argued back in 2002 that sex offender registries served the important function of letting communities know when dangerous sexual predators were in their midst. That man would be Chief Justice John Roberts, who argued Smith v. Doe before the Rehnquist court. While Roberts was doing his job arguing a case before the Supreme Court, it’s hard to see the Chief Justice “seeing the light” now that he’s got a black robe and the Grim Reaper for job oversight. And no judge in the current divisive landscape, especially a Supreme Court Justice, wants the label “pro-child molester.”
So celebrate the current trend toward compassion while you still can. Be happy courts across the country are beginning to realize slapping someone on a registry carries more punitive effects than civic benefits. As you celebrate, do so knowing this trend favoring civil liberties over retribution is most likely evanescent. Once the nine eight unelected lawyers in our nation’s highest court grant the issue certiorari, we’re most likely one “IT IS SO ORDERED” away from a return to the stone ages of punishment without regard to the impact on the convicted. After all, one of the umpires calling the balls and strikes in that game has prior experience making this call and a reputation to uphold.
Those factors, experience and reputation, place the future rights of those on sex offender registries nationally in far greater jeopardy than well intentioned legislators who pass vague, indiscriminate laws “for the good of the children.” Once the Supreme Court sinks their teeth into the validity of these ordinances, the potential binding precedent can take decades to overcome. One can hope Chief Justice Roberts and the rest of the High Court hold differently, but as a noted legal scholar once mused, “Hope is a Virus.”
*Notably, North Carolina, when offered the opportunity to introduce any evidence in support of its position that the registry served a legitimate governmental purposes, chose not to do so:
In its order granting the Does’ renewed motion for summary judgment, the district court addressed the State’s evidentiary deficit:
Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.
Suppl. J.A. 168.
The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11. But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof.
The court rejected the state’s “common sense” approach.