Hope Professor Catherine L Carpenter Southwestern Law School

Hope Professor Catherine L. Carpenter Southwestern Law School Vice President - Alliance for Constitutional Sex Offense Laws

2017 A Sign Of Hope: Shifting Attitudes On Sex Offense Registration Laws, 47 Sw. L. Rev. 1 2016 Throwaway Children: The Tragic Consequences of a False Narrative, 45 SW L. Rev. 461 2016 [book chapter] Caught in the Web of the Criminal Justice System… Jessica Kingsley Publishers 2014 Against Juvenile Sex Offender Reg, 82 U. CIN. L. REV. 746 2013 Emotion, Registration, and Juv. Offenders 3 J. Race & Gender 2012 The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 HASTINGS L. J. 1071 2010 Legislative Epidemics…, 58 Buff. L. Rev. 1 2006 The Constitutionality of Strict Liability in Sex Offender Registration Laws, 86 BU L. Rev. 295 2003 On Statutory Rape… 53 AM. U. L. REV. 313

to make constitutional change. An excellent read on the journeys of movements.

904, 011 on registry They deserve access to housing, employment, and the support to reintegrate

A moral panic has set in: Fear that is wildly distorted and wrongly directed Reptilian Brain Behavior Irrational behavior based on fear

What are the characteristics of a Moral Panic? 1. the official reaction to a person, groups of persons or series of events is out of all proportion to the actual threat offered. 2. when police chiefs, the judiciary, politicians and editors perceive threat in all but identical terms, and appear to talk with one voice of rates, diagnoses, prognoses and solutions. 3. when the media representations universally stress sudden and dramatic increases.

“the risk of recidivism is frightening and high” from Smith v. Doe The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is "frightening and high. " Mc. Kune v. Lile, 536 U. S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2 d 47 (2002); see also id. , at 33, 122 S. Ct. 2017 ("When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault" (citing U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997);

“the risk of recidivism is frightening and high” from Smith v. Doe The authors explain what a sticky message looks like. “Frightening and High” is a sticky message It is a simple statement It has emotional appeal “frightening” It comes from a credible source-the US Supreme Court

Facts Matter. Recidivism rates are much lower than the public believes. And rates substantially reduce over time

High Medium Low

The Supreme Court’s Mistakes Smith v. Doe (Registration laws are only civil regulations. Really? ) Conn. Dep’t of Pub. Safety v. Doe (all offenders can be on State’s registry w/o individualized hearing on dangerousness. Really? )

What is the effect of labelling registration laws “civil regulations”? A green light to…. More Burdensome Registration Laws Expands offenses Longer periods of duration Retroactive application Juveniles on the registry non-sexual offenses included

hope part I court decisions

Is it a Civil Regulation v. Punishment? 1. Did the Legislature intend for law to be civil regulation or punishment? questions we ask 2. Even if legislative intent is civil, is law so punitive in purpose or effect to make it punishment.

If it walks like a duck and quacks like a duck… guess what? It is a duck. Please stop telling us it is not a duck! Sex offender registration is not a civil regulation. It is punishment. Pure and simple.

Hurray! Doe v. Snyder (Aug. 2016) Finally, a federal court has acknowledged that SORNA IS punishment It challenged the Smith assumptions Quack quack

Why Doe v. Snyder Stands Out • Near total banishment due to residency and presence restrictions (work, live, “loiter”) • Burden on registrant is substantial. Burden is not minor or indirect • Angry at State for producing scant evidence to support the imposition of these burdens • Smith did not give states a blank check to do whatever they please Quack quack

Hurray! Millard v. Rankin (Col. Aug 2017) The Court wrote: Registered sex offenders and their family and friends face a known, real, and serious threat of retaliation, violence, ostracism, shaming and other unfair and irrational treatment from the public, directly registered sex offenders and their families resulting from their status as sex offenders. and friends face a known, Quack real, and serious threat of retaliation, quack violence, ostracism, shaming, and other

Why Miller Stands Out • Not only are SOR laws punishment…. they are cruel and unusual punishment • Fundamental flaw in system that there is no individualized risk assessment • Used real stories to describe the cruel and unusual nature of the punishment • SOR laws violate substantive and procedural due process Quack quack

Hurray-a little! Ala. District Court (2015) Mc. Guire v. Strange “Alabama’s scheme goes miles beyond the minimum federal requirements of the Sex Offender Registration Act. ” Appeal to the 11 th circuit 3 years ago. Quack quack

hope part II Legislative changes

The Tiered Registry – not everything we hoped for – it is a mixed bag - but still an important change worth noting Residency restrictions are falling and failing

Because of ACSOL’s efforts 37 cities have repealed residency restrictions, stayed enforcement, or reduced the buffer zone Grover Beach, Arcadia, Cypress, Murrieta, Gardena, Bell Gardens, Norwalk, Long Beach, Apple Valley, Tustin, Carson, Fullerton, Desert Hot Springs, Covina, San Dimas, Inglewood, Adelanto, Seal Beach, Monrovia, Temecula, Glendora, Compton, Claremont, Twentynine Palms, Alhambra, Hawaiian Gardens, Pico Rivera, Grand Terrace, Hemet, Loma Linda, Victorville, Yucaipa, Cerritos, Rosemead, San Jacinto Thank you Janice!

hope part III the media

Zach Anderson, 19 Convicted of statutory rape for having sex with a 14 year old he thought was 17 years old. Was forced onto the registry. Zach faced 61 registration burdens. He had to leave his family home because his 15 year old brother lived at home. He could not own a smart phone; he could not speak with anyone under 17 years of age, he had to drop being a computer science major at college; he could not go to a restaurant that served alcohol. His case brought national attention to the egregious nature of registration burdens,

Creating our own sticky messages with the media Zach Anderson, 19 Check out the stickiness of this message

Hope Professor Catherine L. Carpenter Southwestern Law School Vice President - Alliance for Constitutional Sex Offense Laws