Sunday, July 04, 2004

Sex Offenders (II)

After reading Alva and digesting the California Supreme Court's reasoning, it seems to be an incredibly straight forward decision. Essentially, Alva argued that the life long sex offender registration for a misdemeanor sex crimes (possession of child pornography) violated both the 8th Amendment and California's prohibition against cruel and unusual punishment (California's phrase reads "cruel or unusual", but has been given the same effect).

Alva relies on an earlier California decision, Reed, that held lifelong registration for misdemeanors to be violative of cruel and unusual. However, subsequent decisions by the US Supreme Court, most other states' highest courts, and California's own Supreme Court have called into question the validity of such a holding. These other courts have found that sex offender registration is not punishment. The standard for such a determination is whether the the legislative intent is to punish. As such, the registration here, despite its potential deterrent effect, is merely a registration and not punishment and thus outside of the purview of cruel and unusual analysis. (I am obviously condensing this quite a bit.)

Now, the larger question is whether such a registration is sound, or good, public policy. It seems questionable as to whether monitoring individuals convicted of misdemeanor sex crimes is an efficient or effective use of resources (public and private). However, without much more information about their effectiveness, it is hard to determine whether it is good or bad policy.

However, I am not swayed by the privacy arguments made by opponents of sex offender registries, in general. Given that certain sex crimes have such a high recidivism rate, these registries serve the legitimate purpose of protecting society. In addition, the people choose to commit such crimes that our society views as extremely personal and vicious. With the exception of homicide, no crime takes away someone's sense of personhood like a sex crime. Thus our society has chosen to establish a series of registries to identify offenders and to protect their potential victims.

Yet, a good idea can be taken too far. And when the names of those convicted of statutory (non-forced) rape are broadcast throughout a community, we have simply gone overboard. (It should be noted that in California, the only people who have access to the registry for misdemeanors are law enforcement and are not available to the public.)So there is a need for a bit of common sense in the use and application of sex offender registries. Only those who commit violent or severe sex crimes (such as rape) ought to have their names available to the public. Others who have committed misdemeanors and other less serious sex crimes should register, but that information ought not be available for public consumption.


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