Sex Offender Registry

Sex Offenders Say Idaho’s Retroactive Registration Requirements Are Unconstitutional

Idaho's law is similar to Michigan's, which a federal appeals court recently deemed punitive.

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Idaho State Police

When Idaho first required sex offenders to register with police in 1993, most of them were not forced to do so for the rest of their lives. But over the years legislators extended lifetime registration to more and more crimes, and today it presumptively applies to all sex offenders, who also must check in with police every 90 days. A federal lawsuit filed last Friday argues that retroactively imposing those requirements on sex offenders, in some cases more than two decades after they were convicted, violates the Constitution's ban on ex post facto laws.

Whether the courts agree will depend on whether they view registration and the burdens associated with it as a punishment. In the 2003 case Smith v. Doe, the Supreme Court ruled that Alaska's sex offender registry was essentially regulatory and was not punitive enough to violate the Ex Post Facto Clause. But in August the U.S. Court of Appeals for the 6th Circuit concluded that Michigan's Sex Offender Registration Act goes far enough beyond Alaska's law that applying it retroactively is unconstitutional. The 6th Circuit focused on the act's arbitrary classification scheme, residence restrictions, and burdensome reporting requirements—all features shared by Idaho's law.

Michigan puts sex offenders in tiers that supposedly indicate how dangerous they are, but an offender's classification is based entirely on the statute he violated, as opposed to an individualized assessment of the risk he poses. While Idaho has no tiers, putting all sex offenders in the same category and requiring all of them to register for life implies that they are all equally dangerous, which is arguably even more misleading than Michigan's system. The Idaho lawsuit, which was brought by 104 sex offenders, argues that the state "publicly and falsely identifies [the plaintiffs] as among the most dangerous sex offenders on the registry," even though they "have clinically been determined to be low risk."

Michigan makes it illegal for sex offenders to live, work, or loiter within 1,000 feet of a school. Idaho's zone of exclusion is half as big, and it does not explicitly apply to work, although it effectively bars sex offenders from any job that might require being present on school grounds (to deliver goods or repair equipment, for example). Even sex offenders attending their children's school functions have to get permission in advance.

Like Michigan, Idaho requires registrants to immediately report in person even minor changes in their information, such as a new online ID or a newly borrowed car. Failing to do so within two days is a felony punishable by up to 10 years in prison. Registrants also have to report in advance any trip lasting longer than seven days, and if they travel to another state they are subject to its restrictions, which may be different and hard to figure out. The lawsuit says Idaho's "reporting, surveillance, and supervision requirements" for sex offenders "are similar to, but more restrictive and onerous than, the reporting, surveillance, and supervision that the plaintiffs experienced while serving their sentences on probation or parole."

The plaintiffs note (as the 6th Circuit did) the lack of evidence that these requirements actually make the public safer, which is the rationale for viewing them as regulations rather than penalties. "In fact," says the lawsuit, "the research shows that public registries are likely to increase, rather than decrease, recidivism, and are therefore counterproductive to their avowed purpose of public protection….These results reflect the fact that sex offender registration and the attendant consequences exacerbate risk factors for recidivism, such as lack of employment and housing, and prevent healthy reintegration into the community."

The lawsuit also argues that some provisions of Idaho's law are unconstitutionally vague. It is not clear, for example, whether a registrant commits a felony by signing up for Netflix or changing his Amazon user ID and failing to notify police (in person!) within two days. Other claims involve double jeopardy, cruel and unusual punishment, freedom of travel, and religious freedom (since churches may be within 500 feet of a school).

This month the U.S. Court of Appeals for the 9th Circuit, which includes Idaho, ruled that a state appeals court "was not unreasonable" in holding that Arizona's sex offender registry was mainly regulatory rather than punitive. That decision does not bode well for the challenge to Idaho's law, but it does not preclude success either, even on the ex post facto claim. Idaho's law is more burdensome than Arizona's in some respects, and the 9th Circuit did not independently assess Arizona's law in this month's ruling, which involved a habeas corpus petition filed by a sex offender sentenced to prison for failing to register. The 9th Circuit merely concluded that the state court's decision was "neither contrary to, nor an unreasonable application of" Smith v. Doe.

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29 responses to “Sex Offenders Say Idaho’s Retroactive Registration Requirements Are Unconstitutional

  1. “I never would have taken that leak behind the jungle gym at 3AM back in 1993 if it meant one day I’d be a registered perv!”

  2. Well maybe they should have thought of that before raping 6-yr old boys, which is what all of the so-called “people” on that list did (or something similar).

    We should make leper colonies for these creatures in northern Canada, or perhaps Greenland, where they can all just lay about in a pile raping each other and leave the rest of us actual humans free from miasma of corruption which poisons the very land upon which they trod.

    1. STEVE SMITH INTRIGUED BY RAPE PIT IDEA! STEVE SMITH WANT TO RAPE YOUR NEWSLETTER!

    2. + no goobacks

    3. Gojira says, “Well maybe they should have thought of that before raping 6-yr old boys, which is what all of the so-called “people” on that list did (or something similar).

      And you know this because you went through every individual record to determine that, right?
      That would be impressive but you obviously did not. FFS the 9th District could not be bothered to even look at Arizona’s law; “9th Circuit did not independently assess Arizona’s law in this month’s ruling,…” Rubber fucking stamp. Lazy fucks making ignorant determinations just like you.

      1. I’m pretty sure he’s being sarcastic.

        1. ~~HERE THERE BE SARCASM~~

          Should be on the signup page or something.

  3. The whole thing is theater. It’s not intended to make any sense or serve any desirable outcome.

    1. The way we treat sex offenders really makes me wonder two things: 1) Why isn’t the mandatory minimum for all sex crimes just to be shot in the head? Their lives are basically over as it is, and 2) is our species really so despicable that we need a hated minority for everybody to be able to dump on so that everyone feels better about themselves? Now that we can’t treat blacks that way (PapayaSF hardest hit), it’s like we just promoted sex offenders into the, “Group of people everyone else can sneer at and treat like shit forever and there’s nothing they can do about it. C’mon son, throw a rock at one of them, it’s fun!” category.

      1. And it will get real interesting when smokers, hunters and other undesirables are added to the list.

        1. I was just thinking that it’s a damn good thing LGBT began becoming mainstream accepted around the time these lists began popping up, or they’d have been on them and ruined the lives of many innocent people.

          1. There’s always time to make more lists.

          2. I don’t think that it’s a coincidence that the ascent of LGBT (and I am one) was co-occurrent with the ruthless hysteria surrounding sex offenders. Gays were no longer acceptable targets for society’s opprobrium just as blacks and Jews no longer were, as well. So, all of that hatred, that had been distributed across several disenfranchised minorities, was now concentrated on sex offenders.

            Couple that with the rise in contempt amongst gays themselves towards “pedophiles” and you have a real witch hunt. I can assure you that that contempt was cultivated, over time, as a political expediency and so thoroughly that young people now have no idea what the early gay liberation movement was like.

            I’ve watched it unfold over forty years.

        2. Or people with intolerant political views.

  4. People need to understand how counter productive these lists are. They don’t just fail to protect to society as their backers claim, they actually put society in more danger. Here is why. You have to remember that a judge or a jury gives whatever they consider a just punishment to a defendant. Everyone knows that someone convicted of a sex crime is going to be on one these lists and they know how draconian and harsh that is. So juries and judges knowing that by convicting someone they are already punishing them for life by forcing them to register will naturally then give less jail time than they otherwise would have. Everyone had a stroke over the college student in California getting off so light. He got off with such a short sentence because the judge saw registration as such a harsh punishment. Take away registration and he would have gone to jail for significantly longer.

    There are two types of offenders; ones who in a moment of stupidity or lack of control do something wrong and then after getting caught reform, and ones who are no kidding predators that are never going to reform. The first type are once caught no longer going to be a threat. The second type are always going to be a threat and registration isn’t going to make them less of one. It will however, significantly reduce the time they spend in jail, at least on the first offense, and put them back out in the public to victimize people. Registration makes us less not more safe.

  5. “Well maybe they should have thought of that before raping 6-yr old boys, which is what all of the so-called “people” on that list did (or something similar).”

    Depending on the state, how aggressive the prosecutor is, etc., you can be considered a “sexual predator” for situations like an 18 year old having consensual sex with his 16 year old girlfriend. Even the age-old prank of “mooning” can get you on the list. So, no. They are not all child rapists (or something similar).

    1. Even if it is all for rapists of little boys, it is still not right. Once someone serves their time, their punishment should be over. What is really happening here is these people are angry that “sex offenders” are not all given life without parole or shot and are not honest enough to admit it.

      1. You are exactly right John. And then there is this quote from the lawsuit that backs up a suspicion I’ve always had:

        “In fact,” says the lawsuit, “the research shows that public registries are likely to increase, rather than decrease, recidivism, and are therefore counterproductive to their avowed purpose of public protection….These results reflect the fact that sex offender registration and the attendant consequences exacerbate risk factors for recidivism, such as lack of employment and housing, and prevent healthy reintegration into the community.”

        It’s the same as a recovering drug or alcohol addict. The more stressful their lives are, the more likely they are to revert to their old behavior.

        1. As I say above, it makes society less safe. It causes real threats to get out of jail before they otherwise would have and by making it impossible to reintegrate into society and move on, it results in people reoffending and victimizing someone when they otherwise would not have.

          It is just an insane policy. But people are insane about sex in our society. The same people who let their 10 year old daughters walk around with “juicy” printed on their ass and embrace a culture that totally sexualizes children, want anyone caught with dirty pictures on their computer to be hanged. There is so much compensation and projecting going on it is hard to know where to even begin.

          1. Good points about society basically shitting on these people and telling them they are worthless. If I was in that situation I don’t know how long I could take it before popping a gasket.

  6. I have a friend who is on the list because he got caught taking a leak in an alley while walking home from a bar. He is treated like a molester by the cops, his neighbors, and pretty much anyone who doesn’t know him. This was back in the 90s too. Fucking bullshit.

    As far as people who are an actual danger to society? Lock them up. Kill them. Whatever. But leave everyone else alone. This putting people on lists and making them answer to the police for the rest of their lives is not something that happens in a free country.

    1. he got caught taking a leak in an alley while walking home from a bar

      I couldn’t even guess how many times I did this back in the day.

      Je suis sex offender.

      1. I couldn’t even guess how many times I did this last weekend.

  7. I caught two people with that one. Well done, me *pats self on back*.

    1. Yeah. Yo got me. But, it’s pretty tough to see sarcasm when I have no idea where you stand on things since I’m new here. So, I say you only get a half point for me. 😉

  8. Q: When is a criminal punishment not a criminal punishment?

    A: FYTW.

  9. I concur that the “hit list” is unconstitutional and making it retroactive is even moreso. Just as congress just over rode the president’s veto on suing Saudi Arabia, they make laws based upon emotion and not fact.

    VOTE THEM ALL OUT!!!!!!

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