Guest Blog by Guy Hamilton-Smith

On America's Civil Death Penalty: The Sexual Offense Registry

By Guy Hamilton-Smith

Oscar Wilde, writing from his cell in the Reading Gaol where he was imprisoned for homosexuality at the end of the nineteenth century, observed that "society reserves for itself the right to inflict appalling punishments on the individual, but it also has the supreme vice of shallowness, and fails to realise what it has done. When the man’s punishment is over, it leaves him to himself; that is to say, it abandons him at the very moment when its highest duty towards him begins.”

In America, few aspects of law and policy so perfectly embody Wilde's observation of punishment in nineteenth century England as sex offense registries.

Registries and their application embody shallowness in that most courts do not regard them as punishments at all -- hence the title of this piece reflecting their ostensible “civil” nature. If America had a civil death penalty, putting people on sex registries would be it.

While many countries have such registries, few operate as America’s do. The basic idea behind them is to broadly publicize the names, faces, and home addresses of anyone who has been convicted of any kind of a sexual offense (or, as some U.S. jurisdictions have done, most any crime at all). Along with placement on sex offense registries comes many legal requirements, such as complex reporting requirements and restrictions on where one is able to live. While these requirements vary from state to state (and sometimes city to city), they generally require strict compliance or else those subject to them run the risk of new prosecution for failing to comply.

In 2003, the United States Supreme Court was faced with the question of whether an Alaskan law that made the names and home addresses of people who had been convicted of sexual offenses public constituted punishment. It was an important legal question because, under the American federal constitution, ex post facto laws (that is, laws which increase the punishment for a crime after the crime has already been committed) are prohibited.

In a 6-3 decision, the Court held that it was “civil” as opposed to criminal, justified in part on the basis of the widely-shared perception that people who had been convicted of sexual offenses shared a “frightening and high” risk of re-offending (a perception that has little bearing in reality).

While these lists are justified on the basis of assumed dangerousness, the same Supreme Court in a separate case concluded that whether or not someone was actually dangerous was not a relevant question for inclusion on these lists.

Between these two cases, the Court denied critical constitutional protections for hated groups of people, thus giving the green light to laws which have evolved into something exquisitely punitive. Recently, a major court decision lambasted registries as ineffective at promoting public safety, while noting that they rendered those on them "moral lepers" who are forced to reside at the margins of society on the sole basis of a conviction. Another decision, currently on appeal in the United States 10th Circuit Court of Appeals (one step below the United States Supreme Court), called registries cruel and unusual punishments in violation of the Eighth Amendment to the United States Constitution -- an almost unheard-of legal conclusion for American courts to reach outside of death penalty litigation.

Though, in my view, it is the right one.

I know, because of the nearly million people on America's sex offense registries, I am one of them.

In describing his experiences with solitary confinement -- a practice widely regarded as torture -- Nelson Mandela concluded that there is nothing more dehumanizing than isolation from human connection.

In our hyper-connected age, we don't need solitary to cut people off from human connection.  Being labeled a sex offender, you carry your solitary with you, in your heart, and in your mind. When you put on your shoes to go mail letters or buy milk from the store, when you go out on a date, or try to find something to watch on Netflix, you may as well be on Mars. The indelible electronic mark you carry threatens to turn your own thoughts against you, unless and until you can find a way outside of the prison your own mind begins to construct for you. Until then, you die slowly, suffocating in shame.

I have written more fully about my story and experiences elsewhere, but I have spent the last eleven years living on America’s sex registry. More than simply punishment, in my opinion, it is most fairly characterized as torture.

Hence, the appalling nature of such punishments that Wilde spoke of.

There are two aspects of Wilde's admonition which don't quite fit life on the registry. The first is the implication that this particular type of punishment ends.

In the age of the internet, what goes online stays online forever. America has no "right to forget" -- rather, we are quite taken with the concept of "right to know." Wide public availability is a feature, and not a bug, of our registration systems. Private website operators scrape the public postings and re-host them, ensuring that they show up in Google listings. To take them down, they demand steep fees — a practice which, in other circles, might fairly be called extortion.

While other types of offenders who have committed crimes the luxury of being “ex,” but to offend is something closer to a job title here. Implied in that title is something that you do, that you are, not merely something that you have done, however many years ago, or whatever you have done since to make amends and rehabilitate.

The message is that you must be reminded daily of not just what you have done, but who you are at your core. To offend, as an offender is something that you do.

Guilt, in penological parlance, is good. But shame kills.

For many, no human cost is too much so long as the lists keep people safe -- except that the research done on the question indicates they may actually result in more crime. If people on the registry will forever be heralded a dangerous criminal, regardless of what they do, then there is little incentive to try to be anything better. Those on registries who rehabilitate themselves do so in spite of, rather than because of, their circumstances.  

A broader and more intractable problem is that registries are built on a fundamentally-flawed conception of how sexual violence happens in society, and therefore, can offer nothing but fundamentally-flawed solutions.  As some suggest, sex registries actually facilitate and perpetuate the very sexual violence that they are intended to stop.

The second aspect of Wilde that does not track is that he saw re-entry as a process where the state merely abandoned the damned.

In this context, the state actively opposes them.

Indeed, the success of many American laws that apply to those on the registry are determined by how they keep those on registries separate and apart from the communities in which they are impelled to reside, as opposed to reintegrating them. Residence restrictions, despite being such objectively bad policy that the United States Department of Justice recommends against them, are exceedingly popular with states. Generally, they require that people on the registry not live within a certain proscribed distance from locations like schools and parks. In Florida, for example, the restrictions were so severe that people on the registry had no place they could legally reside except under a literal bridge. While the homeless camp under the bridge was shuttered in response to international condemnation, the restrictions remain in place to this day — with people being essentially forced to move from street corner to street corner in a perpetual game of housing cat-and-mouse. Forcing people into homelessness does not make anyone safer, yet approximately half of the states have them.

As for myself, I am sensitive to the fact that I committed a crime, that my actions harmed others. Nothing I write, here or elsewhere, is intended to minimize either my own actions, nor anyone else’s. I believe that any conception of justice which disregards accountability is a sham. To be accountable, in my view, is to atone, and make amends. At every moment along my journey, from the interrogation room to writing these words, I have always accepted responsibility, and I always will.

Of equal importance, and that which America seems to have largely forgotten, is the opportunity for redemption. Our punishments, especially when it comes to the intersection of sex and criminal justice, are largely untethered from any notion of proportionality, mercy, or reintegration, and thus resemble something closer to a blind, casual cruelty. Rather than making people whole, any punishment which lacks these ingredients becomes little more than poison, through which we all — victims, offenders, and our communities — are diminished.

As mentioned, there are nearly a million people on sex registries in the United States. The trend is that they will only continue to grow. Other countries are now considering American-style registries. They are being exported to other classes of crime, despite little evidence they do much beyond brand those on it pariahs who exist far beyond redemption.

I am ultimately an idealist in our systems of crime and punishment. Properly balanced, I believe that they can be an immense force for good, bring together all those affected by a crime, and leave them better than how it found them.

To arrive at such a system, however, would require that we have the collective courage to recognize that which Wilde saw as plain more than a century ago: that the appalling punishments we impose reflect just as much on those who inflict them as those afflicted by them.

Guy Hamilton-Smith is a graduate of the University of Kentucky College of Law, and is the Sex Offense Litigation and Policy Fellow at the Mitchell Hamline School of Law, in St. Paul, Minnesota. You can follow him on Twitter @G_Padraic.

How to cite this blog post (Harvard style)

Hamilton-Smith, G., (2018) On America's Civil Death Penalty: The Sexual Offense Registry. Available at: https://www.compen.crim.cam.ac.uk/Blog/blog-pages-full-versions/guest-blog-by-guy-hamilton-smith (Accessed [date]).