Member Submission: Smith v Doe Turns 20

NOTE: FAC’s position is complete abolishment of the registry. While this submission does not necessarily reflect the views of FAC, we are sharing one member’s thoughts on the registry for your consideration.

March 7, 2023 marked the 20th anniversary of Smith v Doe, the Supreme Court case which ruled that sex offender registries may be applied retroactively because they do not constitute a form of criminal punishment. The list of court decisions affirming the non-punitive nature of registries is long. But there is another, shorter list of decisions stating the opposite: that some registries have grown so big and powerful that they now do constitute a form of punishment. At some point, this division of legal opinion will need to be resolved.

Will the Supreme Court revisit Smith v Doe? Nobody can say for sure. What can be said is that there is still no great public pressure to abolish or reform registries. And among the small movement of advocates fighting them, there is no consensus on the best path to follow.

There are, generally, three paths:

1. Demanding the reform of all registries by restricting their scope, duration, and implementation until they are so small and useless that they might as well go away.
2. Demanding challenges only to the most blatant actions associated with registries on the theory that to do anything more risks setting harmful precedents while public attitudes remain so prejudicial against registrants.
3. Demanding the total abolition of all registries, and rejecting most efforts to reform them on the theory that the best way to fight a bad law is to enforce it to the maximum extent until it is repealed.

These paths are reflected in the positions of various advocacy groups on legal challenges to registries. The first group has been the most proactive, arguing that whatever can be done to reduce the size and harm of registries is one step further toward their abolition. But this group’s emphasis gives the false impression that it seeks to reform registries in order to perfect them.

The second group has also been proactive, but its position on legal and political challenges has tended to be very timid. It focuses instead on changing public attitudes — shifting the so-called Overton Window — but success there is very hard to measure. And its emphasis gives the false impression that it really doesn’t mind registries so much.

Finally, the third group has the satisfaction of taking the most principled stand but has objected to almost everything the other two groups have done to ameliorate the harm caused by registries. This group gives the false impression that it wants the registries to grow even worse.

That is what has happened since 2003. Almost one million Americans are on registries and many of them face no real prospect of being removed for decades, if at all. In several states, the registry requirements have become more, not less, onerous even if they are not always tightly enforced.

How much worse can registries get? There is no way to answer this question, either. There is no magic point at which the legislatures and/or the courts of 50 states and the federal government will say, all this has gone too far and must now stop. And there’s no crystal ball for knowing how long the more gradual approach of degrading registries will take to work. As for public attitudes, they have long been hostage to powerful minorities. Perhaps if 10, 20 or 50 million Americans were on registries, a plurality might call for their abolition; but that looks very unlikely in the foreseeable future.

What else can be done? Here is one possibility: shift the main focus of activism from the form that abolition ought to take to the discrimination that registries enable. Indeed this shift has already begun to occur.

Most registry laws already contain some language to the effect that they cannot be used to cause harm. Yet, that is exactly what registries are being used for: in housing, employment, travel, and so on.

If registries become less useful as a means to discriminate, more taxpayers may begin to wonder why it’s important to pay so much for the bureaucracies that manage them. The removal of residency restrictions in some states (for example, California) may have already had this effect. Imagine if this provision were extended to the private sector. If you were the head of a homeowners’ association, would you really want to know how many registrants live on your block if you were prohibited from preventing them from living there or from treating them different from anyone else?

No doubt some people will say, “yes, been there, tried that.” They will say that as long as registries exist, people on them will suffer some form of discrimination. That’s probably true. Which is all the more reason to target the acts of discrimination directly. Discrimination is just harder to defend as being necessary for public safety. It’s also hard to prove that discrimination does not derive from registries so long as registries are public.

Put another way, the defenders of registries have insisted that registries are or must be: 1. public; 2. non-punitive in theory; 3. discriminatory in practice. All three aims may be legal for now, but like the three positions of the anti-registry movement mentioned above, they are not logically consistent.

If opponents of registries cannot agree on the best way to defeat points 1. and 2., they may as well further unite against point 3. Restating the emphasis in this way also allows for more support from other civil rights groups that have hitherto been unwilling to assist the fight against registries. Where such help has been forthcoming, it has almost always been to protect broadly against discrimination or ensure standards of due process, rather than to remedy the injustices of registries per se.

For 20 years the supporters of registries have fought to “close loopholes” in state registry laws. Their opponents must continue to be as assiduous in fighting to close the legal and other loopholes that allow for discrimination against one million Americans and their families.