One Hand Washing The Other

Sex Offenders, Science, and Shadow Con Law

There is an issue that I don’t particularly know how to address with respect to challenges to various sex offense registration schemes that comes up frequently in court decisions.

The science on these issues is pretty consistent: sex offender registries don’t reduce recidivism (and might increase it), and restricting where people with past sex convictions can reside does nothing to increase public safety, and arguably decreases it. We spend an enormous amount of resources, law enforcement manpower, and court docket time on an Emperor-has-no-clothes kind of system. The evidence is so clear with respect to residence restrictions, for example, that I can literally not point you to any expert that says they are a good idea, and plenty of experts and law enforcement agencies who say that they are bad ideas and not grounded in available evidence.

Now, if registries and all their associated paraphernalia such as living restrictions were simply cast as punishment, the public safety question / evidence question wouldn’t matter. It would not matter if they increase recidivism because one of the ostensible goals of punishment is simply retribution. If society wants to extract pound after pound of flesh for no other reason than to make people it deems deserving hurt, then that is society’s business (and the legislature’s).

But pointedly, these laws are very much characterized by legislatures and some courts as non-punitive, civil regulatory measures that are either meant to or necessary to protect the public. Because if they’re characterized as punishment, two things happen: they become subject to other constitutional arguments such as Ex Post Facto, and it lays bare what I perceive as one of their actual purposes in that we don’t care if they’re effective, we just want people we deem deserving (and their families) to suffer. Because of their legal existence as public safety tools, however, that is a question that is subject to testing from folks like social scientists because laws must still bear a rational relationship to their intended goal.

So given that the science indicates that these tools are not effective, and thus that legislative judgments are not just ignorant of available evidence but are in direct contravention of it, what happens when courts say that these are issues for the legislative process to resolve?

Are legislators responsive to the science or concerns regarding sex offender registries? My own sense is that, no, they generally do not care or at least do not care enough to propose evidence-based legislation for fear that it will harm re-election efforts. No politician wants to be faced with an attack at that they “want child molesters to live across the street from your child’s school,” never mind is that what they would want is simply to pass evidence-based legislation that ensuring that people aren’t homeless and are stable in their living situation makes them less likely to recidivate and easier for law enforcement to locate. If you’re interested in the science on that point, check my amicus brief in my last post.

Essentially, once these laws get on the books, it is very difficult to get the legislative process to be responsive to evidence. You can’t kill with science that which was not borne of science. Ongoing litigation in Michigan over the Michigan’s legislature refusal to do what it was ordered to do by a federal court: pass a SORA law that was in compliance with the Sixth Circuit’s decision in Does v. Snyder.

If courts say “it’s not our job, it’s the legislatures” and legislatures simply say “hell no,” then what’s a class of uniquely unpopular and politically powerless individuals & their families to do?

An old mentor of mine had a saying when anyone complained he wasn’t working fast enough: I’ve got two speeds, and if you don’t like this one, you’re not going to like the other one. Aping this, we’ve got two constitutions, and if you don’t like this one…well, you know how it the rest of it goes.

There is another set of constitutional rights that applies, and has applied, from time to time, throughout our history to sets of uniquely unpopular individuals, which is to say few to none. Korematsu, which was “overruled by the court of history” (whatever that means) in Trump v. Hawaii, was grounded in the same sort of uninformed, ill-advised panic that we collectively were drunk on at the time. I’m not equating one’s descent with committing crimes. There is, I believe, a very real and valuable role for the criminal system to play, but this is not the criminal system. I am saying the principles the led to rounding up people and putting them in camps are the same: legislative choices that are based on fear and animosity rather than consideration of available evidence which overrode the ostensible constitutional and human rights of then-unpopular people.

Courts say that rational basis means that the law has to bear a rational relationship with its stated aim. A law that would direct the rounding up of Japanese Americans out of national security concerns would certainly not be a rational, reasonable legislative choice no matter what the legislature says about the grave risk they pose to national security given what we now know. But in order to evaluate that claim, a court must wade into the question in evaluating the evidence (and when it does, of course, it would find no support for the legislature’s pretext). How can one even speak to whether a law bears a rational connection to its aims in a solipsistic vacuum? It is not reasonable to believe today that we believed in the 1940’s, and the standard is not “whatever the legislature says goes,” at least not usually.

As our knowledge advances, so should the ways in which courts approach the issues before them. But in this context, we appear to be frozen in the early 1990’s. Courts are reluctant to evaluate evidence notwithstanding that the Supreme Court has previously held that the judiciary has an independent duty to evaluate factual findings (even those contrary to legislative findings) when constitutional rights are at stake. The result is something akin to Shadow Con Law, essentially an area of modern American life where the constitution has very limited reach, and very limited effect (or essentially no effect, if you consider the Supreme Court’s refusal to grant certiorari in Karsjens v. Piper in the context of indefinite civil detention).

We ought to consider whether this is an arsenal we want to build, given the law’s very well-documented effect of first being deployed against the demonized before being focused on others. Today, people with past sex-related convictions, tomorrow, who knows?

I’m not entirely sure what the answer is insofar as how to invite courts to step up and essentially do their constitutional duty to grapple with available facts in this area, especially given that so many judges are subject to the same electoral pressures as legislators. But what results is essentially an adventure in one hand washing the other: courts say go to the legislature, legislatures say if you don’t like it file a lawsuit, and in the end there is no remedy and no way to even effectively seek one.

And it does call to mind one of my favorite, if depressing, Learned Hand quotes:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.