A Look at the Sex Offender Registry’s Origins: Smith vs. Doe 2003
(Weekly Update #162)
Dear Members and Advocates,
Even though I’ve been deeply involved in advocacy for nearly a decade, I continue to learn new things and see things from a different perspective from time to time. I once had one of these “ah ha” moments when I realized that I’m not really advocating for reform, but I’m advocating for abolition. More recently I had an “ah ha” moment when I realized that Smith v. Doe did not, in fact, find sex offender registration non-punitive.
For the longest time, I’ve listened to the argument that the Supreme Court decided that registration is not punishment and therefore does not violate the Ex Post Facto clause. But that’s not entirely true. In fact, it’s not true at all. The Supreme Court didn’t decide that “registration” is not punishment. They decided that the then-current version of Alaska’s Sex Offender Registry was non-punitive. We know that from the actual language of the opinion. Justice Kennedy expressly wrote “The Alaska law, which is our concern in this case,” was what they were looking at.
The pre-2003 version of Alaska’s registry was possibly non-punitive. As the opinion described, “An individual seeking the information must take the initial step of going to the Department of Public Safety’s Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” That description of the steps it takes to find someone on the registry is not how it is today, certainly not how it is in Florida. A simple Google search of a person’s name produces their FDLE flyer with the “Sex Offender” mark, whether they intended to search the registry or not. Today’s registry is not “analogous to a visit to an official archive of criminal records” in order to find that information. It’s the first thing people see about you when they simply Google your name.
The opinion also states, “The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Maybe in 2003, but not today. If you leave the home you are grandfathered into, good luck finding someplace else to live! The opinion further states, “The Alaska statute, on its face, does not require these updates to be made in person. And, as respondents conceded at the oral argument before us, the record contains no indication that an in-person appearance requirement has been imposed on any sex offender subject to the Act.” Oh really? Maybe the pre-2003 Alaska Act did not require in person updates, but the 2021 Florida Act requires multiple, in person, appearances which, for some, can be monthly or even more frequent, but for all no less than two in person appearances per year.
I continue with the Supreme Court’s finding that the pre-2003 Alaska Act differentiates between individuals convicted of aggravated or multiple offenses and those convicted of a single non-aggravated offense and “[t]he broad categories, however, and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.” OK… but in Florida’s 2021 Act the length of the reporting requirement is lifetime for everyone, as if everyone on the registry is a high risk forever.
Finally, is the Supreme Court’s erroneous finding that the risk of recidivism posed by those deemed sex offenders is “frightening and high”. This is a statement I can devote (and have devoted) entire articles to and numerous researchers, including the source of that “frightening and high” quote all acknowledge is completely not true.
At that time (2003) and for that Act (Alaska’s pre-2003 sex offender registry), Justice Souter, while concurring with the majority, still called it a “close call”. If that version was a close call, how would Justice Souter rule at this time (2021) on Florida’s Law, which piled a bunch more requirements and restrictions that are not even close to resembling Alaska’s Pre-2003 registry? We also must keep in mind that several Justices dissented. They wrote, “Alaska’s Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.” Again, if Justice Ginsburg thought that of the Pre-2003 Alaska Act, how would she feel about an additional 18 years’ worth of piled on additions to what was then already onerous and intrusive?
Over the years, many courts have found that components of registries across the country are unconstitutional, including Alaska’s own Supreme Court, which found subsequent versions of Alaska’s registry to be unconstitutional. Despite that, people still point to Smith v. Doe as the apparent endorsement of the Supreme Court of the United States that “the registry” is not punishment. Admittedly, I’ve also said that Smith v. Doe provided governments a blank check to pile on restrictions under the guise that the registry is non-punitive, but I was wrong.
Hereafter we should emphatically point out that Smith v. Doe DID NOT find “the registry” to be non-punitive. They only found the pre-2003 version of Alaska’s registry to be non-punitive. Several States, including but not limited to; Maine, Kentucky, New Jersey, Pennsylvania, Ohio, Alaska, Indiana, New Hampshire and just this past week Michigan found “their registry” to be unconstitutional despite Smith v. Doe. Hopefully Florida will soon follow.
Sincerely,
The Florida Action Committee
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SOME HEADLINES FROM THE WEEK
MI: State Supreme Court finds Michigan Registration Act Violates Ex Post Facto
I know what you’re thinking… This is GREAT news, but wasn’t the retroactive application of Michigan’s sex offender law already declared unconstitutional. Well yes… you’re thinking of the incredible Does v. Snyder case in the 6th Circuit FEDERAL appellate court…
Media Committee: Missed opportunity for meaningful juvenile justice reform in Florida
We thank Ms. Tachana Joseph-Marc for her opinion piece in the Florida Times Union: “Guest Column: Another missed opportunity for meaningful juvenile justice reform in Florida”. The major flaw in the vetoed bill, though, was that it excluded those whose offense as a…
Member Submission: Another unconstitutional entrapment sting – this time in Lake County
What we want the people of Lake County to understand: Knowing that these people have been taken off the streets at night should help all of us sleep better at night. Right? No. In these stings, they usually occur at adult-only websites where law enforcement…
Member Submission: Compliance Checks
While FAC deals only with registry issues, many of our members are having to deal with sex offender probation, too. In reading articles published throughout the United States, one will soon see that it is becoming a common occurrence to have U. S. Marshalls serving…
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My biggest concern with the notion of trying to revisit Smith v Doe is not that your argument regarding punitiveness– I not only know your assessment is accurate and have had this same thought for while now but never committed it to print, since Does v Snyder and the rulings from the Ohio Supreme Court before it coming to the same conclusion) — the concern I have is the political position of the Court.
People who look fondly at the Civil Rights era neglect the fact the movement benfited from a LIBERAL Warren Court. Now we have the ultra-conservative Roberts Court (preceded by the already conservative Rehnquist Court), which has not been favorable to us for the most part.
I covered the rulings over the past quarter century when RBG passed away but I’d like to reemphasize those cases again:
Kansas v Hendricks, 521 US 346 (1997): A 5-4 split, with conservative justices Thomas, Scalia, Rehnquist, and O’Connor joining Kennedy in upholding civil commitment based on a lower standard for commitment and a lower burden of proof. Justices Ginsburg joined Breyer, Stevens, and Souter in dissent.
McKune v. Lile, 536 US 24 (2002): A 5-4 split, with conservative justices Thomas, Scalia, Rehnquist, and O’Connor joining Kennedy in denying the Kansas Sexual Abuse Treatment Program violate inmates’ Fifth Amendment privilege against compelled self-incrimination. Justices Ginsburg joined Breyer, Stevens, and Souter in dissent.
Smith v Doe, 538 US 84 (2003): A 6-3 split, with conservative justices Thomas, Scalia, Rehnquist, and O’Connor joining Kennedy and liberal justice Souter in denying the Alaska sex offense registry is punitive and thus violating the ex post facto clause. Justices Ginsburg wrote the dissent, joined by Breyer and Stevens.
“What ultimately tips the balance for me is the Act’s excessiveness in relation to its nonpunitive purpose,” Ginsburg wrote in her dissent. “The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not to any determination of a particular offender’s risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.” (Citations omitted.)
Kennedy v Louisiana, 554 US 407 (2008): A 5-4 split, with liberal justices Ginsburg, Stevens, Souter, and Breyer joining Kennedy in a majority opinion declaring a person cannot be executed for a sex offense where no death was involved. Conservative justices Roberts, Alito, Scalia, and Thomas feels it is perfectly fine to execute a Registered Person if his offense did not result in death.
Packingham v North Carolina, 582 US _ (2017): While this decision was unanimous on upholding a registrant’s right to social media (8-0, as Justice Gorsuch was not a part of the vote), the conservative justices Roberts, Alito, Roberts, and Thomas wrote a concurring opinion that state states should be allowed to regulate activity on certain websites.
US v Haymond, 588 US _ (2019): In a 5-4 split that ruled 18 USC 3583(k) violates the Fifth and Sixth Amendments by imposing a mandatory minimum punishment on a criminal defendant upon a finding by a preponderance of the evidence that the defendant engaged in certain criminal conduct during supervised release, Ginsburg joined liberal justices Breyer, Kagan, and Sotomayor and conservative justice Gorsuch in the majority opinion. Conservative justices Alito, Roberts, Thomas, and Kavanaugh dissented. The case involved a Registered Person sentenced on a parole violation based on a “preponderance of the evidence” finding the registrant’s computer may have recently contained illicit photos.
While this pattern has not been universal (See US v Comstock, 560 US 126 (2010), where only conservative justices Alito and Thomas rejected the majority opinion that Congress had the constitutional authority to enact the Adam Walsh Act under the Necessary and Proper Clause), the majority of landmark cases impacting Registered Persons have been divided, with liberal justices more likely to vote against registry laws and other draconian sanctions.
And we now have a 6-3 conservative-leaning court. That alone makes me skeptical of overturning Smith v Doe any time soon. We syill have Roberts, who argued the registry is akin to signing up for the Price Club, and Thomas, who ruled in favor of the state in Smith v Doe. That lessens our chances to revisit the law at the highest level.
Derek, This isn’t necessarily about getting back to the Supreme Court with this argument, but all the Circuit and District courts in which the States simply argue that Smith v. Doe exists and think it’s a Mic drop. Smith v. Doe didn’t contemplate residency restrictions, because they didn’t exist. Smith also didn’t contemplate IN PERSON registration, minimum mandatory sentences for FTR, Stamped passports or dozens of other collateral consequences.
Now, if an assistant state attorney or assistant US attorney says, “Smith v. Doe says…” we have a rebuttal
I say again, every legislature in the country has written out every single registry characteristic the USSC laid out that led to the (erroneous) conclusion that the registry is a mere civil regulatory regime in Smith v. Doe. It doesn’t need to be overturned or revisited – it’s obsolete. If anything, it provides perfectly sound arguments in our favor.
Smith: “…does not require updates to be made in person.”
Response: It does now, by statute. And more frequently.
Smith: “…offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision…”
Response: Residence and employment restrictions, subject to approval by the sheriff’s department. Even if prior approval is not statutorily required, the sheriff is authorized to force eviction or termination by threat of arrest.
Smith: “The process is more analogous to a visit to an official archive of criminal records…”
Response: Mandatory community notification, often at registrant’s expense.
Smith: “…than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.”
Response: Like a driver’s license or passport marked “SEX OFFENDER” or “SEXUAL PREDATOR”?
Smith: “The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole.” (Stevens’ dissent).
Response: “DUH!!!”
Dustin
The best Supreme court legal term you used is that last line. That should be our tag line for the entire registry movement.
Question :
“Is the registry punishment?”
Answer:
“DUH!”
With so many states finding the registry to be unconstitutional, why do these states still have state statutes penalizing registrants?
Not being selfish, just giving MY personal experience.
I did not have to register (There was no registry)
Then I had to registry once and done
Then I had to register when I had changes
Then I had to register once a year,
Then twice a year
Now 4 times a year and for life without possibility of getting off ever for any reason. ( Just listed as an offender with no notifications of neighbors required)
But Florida says this is not punishment? Well my parents are affected. My neighbors are affected because they live in fear and rightly so when Nextdoor over rides the registry. I am not required to tell anyone anything but nextdoor did a really nice job for me and informed everyone. Photos, address and how to harass me and get me to move, which by the way ain’t going to happen. I told them, God gave me a place to live and unless you are more powerful than God, I suggest you leave me alone.
Also I would like to say, We all know that even if the registry was barred in Florida, there is still an issue. I do not remember which one it was, but there are about 12 Sheriff’s in Florida who really give us major crap. One of them recently (I think I sent something in about his before) stated he does not care what law is passed, He and his deputies will continue to check on sex offenders both on an off probation forever or until he is no longer sheriff. Regardless of ANY court orders. He stated that if you live in his county and have any sex offense, no matter how long ago it was, you are getting a visit as often as we deem necessary.
FAC even though I cannot quote which one said that , you know a couple of them that feel that way, I just cannot remember which one it was. Just glad I do not live in any of the Florida counties that have the Gestapo Sheriff’s.
Can much of this registry be called a “mic drop for injustice” when much of this is unjust.. I liked that – and yes one still has a voice. It all depends how one goes about it or the “Actions” one should take, or should all sex offenders be cast away on a desert Island or should even abotionist be castrated for taking lifes? I wonder what that person would say in the tome of the unknown soildier. Would that person say I did it all for my country or I did it all to protect and serve or to protect community or even what Nathan Hale would say. Their is still a lot to clean up in America and this registry is a bit outragious and other issues. Even police slipping on their mic drop.
FAC if you need a letter to the editor as a starter to get in the newspapers, I will be glad to send you one to help in this cause. You can change it however you want as talking and complaining is what many have been doing for the past 9 yrs I and even those others have been doing on these sites. I doubt very seriously that guys get into soap opra’s or are drama queens. I’m sure many were into Paul Harvey comments of that day.
Even holding someone after their sentence is bias and a bit underhanded. Hey at times one can over think just as much as under think and whats more important than justice or should we say lets all go fishing or take a holiday to Rome and even the Roman empire burned.