The Death Penalty and Sex Offender Registries

Scott Henson at Grits for Breakfast offers a provocative post connecting a recent exoneration in a death penalty case with sex offender registries:

Sen. Shapiro sounds a little defensive, and perhaps she should. She's correct that Blair's exoneration indeed does not "diminish the fact that Ashley Estell was molested and murdered." What it does do, however, is demonstrate how easily the harsh laws Sen. Shapiro spearheaded can be applied to the wrong person. (The man DNA identified as Estell's actual killer died ten years ago without being prosecuted for the crime.)

Three factors contributed to Michael Blair's wrongful conviction: Inaccurate eyewitness testimony, shoddy forensic science, and assumptions of guilt by police based on Blair's past conviction for sex crimes. The sex offender laws Shapiro spearheaded institutionalized such assumptions - encouraging instead of preventing them - making it more likely in such cases the wrong person gets convicted and the guilty man goes free.

Frankly, IMO the whole sex offender registry idea was always more a public relations stunt than a public safety strategy. The registries includes too many petty offenders, they tend to be filled with errors and perhaps most importantly from a public safety perspective, research shows that "community notification deters first-time sex offenses, but increases recidivism by registered offenders." (emphasis added)

I think this is an interesting and essentially correct observation. This is not to say that the existence of registries made it more likely that someone would be falsely convicted. However, the assumption of the registry that all sex offenders are equally dangerous for life is also embodied in short-cut police work that sometimes causes tunnel-vision focus on particular suspects with prior convictions.

Perhaps Henson's observation is why Doug Berman thinks the decision in Kennedy calls into question the constitutionality of sex offender registries. In discussing the ridiculous penalties in Georgia that were posted about here, Berman had this to say:

I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.

As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes.  The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.

Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge.  If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?

I'm not sure I agree. I think you can distill an essential portion of the Kennedy majority to the proposition that death is different. For whatever reason, the USSC has always been reluctant to apply the 8th Amendment as regulating proportionality in non-death cases. I agree with Berman that the idea that the 8th Amendment should excessively focus on the death penalty is nonsense. Maybe the Georgia Supreme Court will be more inclined to explore the undertheorized area of non-death-case proportionality, but I'm pessimistic.

Comments

[Daniel]

I agree with your assessment. The 'death is different' claim has an emotive appeal. The problem with non-death penalty proportionality is that it is much more difficult to draw the constitutional line without stepping on the legislatures toes. We do live in a democracy and even if I think some of the sentences are crazy, I'm not in favor of the court stepping in and replacing the legislative function. Of course, there are some laws that cry out for a constitutional remedy. But it is a true morass for SCOTUS; I understand their reluctance to open this can of worms.

[George]

I've been trying to raise some enthusiasm for finding state Supreme Court rulings are part and parcel to federalism. Why should federalism be limited to state legislatures? If the majority of state Supreme Courts have found there can be excessive prison punishment under the cruel and unusual clauses of their respective state constitutions, why not incorporate that under the federal 14th amendment? In other words, bean count the state supreme courts, not only state laws. Is there any SCOTUS precedent disallowing the counting of state court opinions as part of the doctrine of federalism?

If the majority or most states have found some prison sentences can be excessive to the point of cruel and unusual, then there is a strong implication of a national and historical consensus on that issue. What's more, SCOTUS could take it up without violating the doctrine of federalism because it would only be agreeing with state Supreme Courts, which are also branches of the federalism tree. I've not found this argued anywhere yet. Has it been?