At What Point do Sex Offender Restrictions Become Extrajudicial Punishment?

While most of us believe that criminals, once they’ve served out their sentence, deserve a second chance to turn themselves into productive members of society, it’s not unreasonable to view sex offenders, particularly those who have victimized children, as a special case. Any sane person would find their crimes utterly repugnant, and there is a strong perception (whether or not it’s true – studies on the subject are inconclusive and somewhat contradictory) that sex offenders have much higher recidivism rates than other criminals.

For that reason, people seem to be supportive of placing restrictions on convicted sex offenders, even after they’re released from prison. These include registration every time they move, some restrictions on where they can live (usually requiring them to live a minimum distance away from sensitive locations, such as schools, parks, and daycare centers), and barring them from holding certain jobs.

However, I’ve blogged before about how these restrictions can go too far. And, just to be clear, I should reiterate that my objections to some of these restrictions are not motivated by sympathy toward sex offenders. Rather, they’re motivated by some pretty strong evidence that they’re not only costly and ineffective, but they’re actually counter-productive, and may increase recidivism rates.

So, you might understand my concern when I read this story. The Board of Supervisors in Orange County, California has passed an ordinance that places some of the most severe restrictions yet on convicted sex offenders. It severely restricts their movements, bars them from going to certain beaches and parks, and places other restrictions on their conduct.

The law doesn’t even seem to have gone into effect yet, and it’s already generating controversy. This may well prove to be another ineffective and counterproductive law, passed to score political points for its sponsors, rather than to seriously deter sex offenders from re-offending.

Critics of the law, including some social workers, note that the overwhelming majority (well over 90%) of sex crimes are committed by family members or close acquaintances of the victim. Only a very small number are committed by random strangers at public places, like beaches and parks. So, a good case can be made that the resources which will go into enforcing this law (which will definitely be very difficult to enforce effectively) could be better spent in improving staffing and training for government agencies in charge of children’s and family services. These agencies are often the first to investigate allegations of sexual abuse by family members or acquaintances, and on the front lines in the battle to prevent it.

Also, laws that increase restrictions on offenders who have already been convicted, served their time, and released may well be unconstitutional.

If this law applies retroactively, it’s got an uphill court battle ahead of it, to say the least. Under the U.S. Constitution, states are prohibited from passing “ex post facto” laws – laws that apply retroactively. Basically, this means that, when a law is enacted, it cannot apply to conduct that occurred in the past, which would be prohibited under the law. For example, if a law that makes it illegal to wear blue hats goes into effect today, it cannot be used to punish someone who wore a blue hat yesterday. It can only apply to people who break the law after it goes into effect.

This law in Orange County makes it a criminal act for convicted sex offenders to visit a large number of public places. It presumably does not try to punish sex offenders who visited these places before the law was passed.

However, it’s well-settled that the prohibition on ex post facto laws doesn’t just apply to new laws that criminalize conduct. It also applies to sentences. So, a law that changes the sentence for a given crime can’t be used to go back and change the sentences of people who were convicted before the law was enacted.

A good case can be made that this law, and other laws dealing with registration/restriction of sex offenders (to the extent that they apply to people who have already been convicted and sentenced) are unconstitutional. Think about it, all of these new restrictions are being placed on a whole class of people, without them actually being sentenced to them. Sure, after they committed their crimes, they were tried, convicted, and sentenced, and any post-release restrictions that were included in their original sentences are perfectly constitutional. However, these restrictions are being imposed years (in some cases) after the offender was originally sentenced.

Also, because the vast majority of sexual abuse is not committed by strangers taking their victims from public places, and because this has been known for years, the people who passed this law had to know that it was extremely unlikely to actually prevent any sex crimes from occurring. It’s more likely that this law is simply punitive. This makes it even more constitutionally-suspect. After all, a case could be made that these new restrictions on convicted offenders who have been released from prison, which can be shown to reduce recidivism, it could be argued that there’s a compelling state interest in these laws. However, if the law is motivated only by a feeling that sex offenders are not being punished enough, then it will be very hard for this law to pass constitutional muster.

And if it’s struck down, I won’t mourn its loss. Again, this isn’t out of sympathy for sex offenders. Far from it. They should be punished for their crimes. However, just because their crimes are particularly appalling, that doesn’t mean we shouldn’t extend to them the same constitutional protection we give to convicted murderers.