On Strife and Struggle

RBG is dead. Long live RBG.

Ruth Bader Ginsberg is dead. I screamed a choice word when I heard the news. I imagine many people did. 2020 seems to keep on coming.

My dismay was only partially political. Partly human as well, but I think many people much more eloquent and qualified to speak to RBG as a human being, and her body of work.

The point of my writing something a small way of saying thank you for her words in a case that’s my proverbial white whale (one of them, anyway), but something relatively few people will be thinking about in the coming days: her dissent in 2003’s Smith v. Doe.

I did not go to law school to work on sex offense registries. In fact, I went to law school to hide from them. The idea of being a lawyer didn’t occur to me until I asked my own lawyer about it. The last work I wanted to do was this work. I wanted to do criminal defense work, keep my head down, and not be too controversial. God’s got some kind of sense of humor, I suppose.

But for my time in criminal defense, I learned a lot of useful lessons. One is that you’re going to lose. A lot. You will spend hours painstakingly researching and briefing a Fourth Amendment issue, only for the prosecutor to not file a response at all, and you still lose. It’s the nature of the beast. We didn’t arrive at a police state without the willing cooperation of the judiciary, after all.

The other lesson I learned is that oftentimes, despite that fact, the win is in the fight. It is in the fact that you’re showing up swinging despite insurmountable odds. Back in 2014 or so, when Pussy Riot was in the news cycle and LGBTQ protests reached a fever pitch in Russia, I remember reading an interview of a Russian activist who said — in response to the question of whether they expected to prevail on their demands — of course we’re going to lose. That was never the question. The question is whether anyone is going to know about it.

You’re not supposed to show up at all. And yet, you do. You’re not supposed to fight. And yet, you do.

There are few civil and human rights fights that are as unpopular as this one, and some might say that’s part of the reason why it’s important. Oppression never finds its genesis with the well-liked and the moneyed.

In re-reading RBG’s dissent I realized that of the things that I have said and argued about registries, none of it is particularly original. It wasn’t anything that she didn’t already say twenty years ago. Registries were punishment then, and they’re certainly punishment now in our hyper-digital era where the records of one’s past have become permanent and unchangeable.

And, I think, whether we as a society find such a state of affairs desirable is certainly a thing we can debate. If we have, in fact, become a society and a culture and a people that has no use or room for concepts like redemption and rehabilitation and mercy, then so be it. You would obviously find me ready and willing to disagree with you. But, in keeping with what RBG wrote almost two decades ago, let’s simply be honest about what we’re doing, and why we’re doing it.

It is always sad when people die. Particularly so when those people are willing to speak uncomfortable truths, as RBG clearly was. Seems that she was possessed of a trait in short supply these days, and one we badly need.

But the fight goes on.

RBG is dead. Long live RBG.

JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting.

As JUSTICE SOUTER carefully explains, it is unclear whether the Alaska Legislature conceived of the State's Sex Offender Registration Act as a regulatory measure or as a penal law. See ante, at 107-109 (opinion concurring in judgment). Accordingly, in resolving whether the Act ranks as penal for ex post facto purposes, I would not demand "the clearest proof" that the statute is in effect criminal rather than civil. Instead, guided by Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), I would neutrally evaluate the Act's purpose and effects. See id., at 168-169 (listing seven factors courts should consider "[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute"); cf. Hudson v. United States, 522 U. S. 93, 115 (1997) (BREYER, J., concurring in judgment) ("[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand.").[1]

Tending the other way, I acknowledge, the Court has ranked some laws civil and nonpunitive although they impose significant disabilities or restraints. See, e. g., Flemming v. Nestor, 363 U. S. 603 (1960) (termination of accrued disability benefits payable to deported resident aliens); Kansas v. Hendricks, 521 U. S. 346 (1997) (civil confinement of mentally ill sex offenders). The Court has also deemed some laws nonpunitive despite "punitive aspects." See United States v. Ursery,518 U. S. 267, 290 (1996).

What ultimately tips the balance for me is the Act's excessiveness in relation to its nonpunitive purpose. See Mendoza-Martinez, 372 U. S., at 169. As respondents concede, see Brief for Respondents 38, the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. See ante, at 102-103 (majority opinion). But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not to any determination of a particular offender's risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. See ante, at 90. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation.[2] However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.

John Doe I, for example, pleaded nolo contendere to a charge of sexual abuse of a minor nine years before the Alaska Act was enacted. He successfully completed a treatment program, and gained early release on supervised probation in part because of his compliance with the program's requirements and his apparent low risk of reoffense. Brief for Respondents 1. He subsequently remarried, established a business, and was reunited with his family. Ibid. He was also granted custody of a minor daughter, based on a court's determination that he had been successfully rehabilitated. See Doe I v. Otte, 259 F. 3d 979, 983 (CA9 2001). The court's determination rested in part on psychiatric evaluations concluding that Doe had "a very low risk of re-offending" and is "not a pedophile." Ibid. (internal quotation marks omitted). Notwithstanding this strong evidence of rehabilitation, the Alaska Act requires Doe to report personal information to the State four times per year, and permits the State publicly to label him a "Registered Sex Offender" for the rest of his life.

Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals.