Editorial: Sex Offender Registration

Thursday, May 15, 2014
It’s hard to think of a class of people more reviled in America than sex offenders. This is due to both the appalling nature of the offense and the belief that they are at high risk to reoffend. Thus society imposes burdens and disabilities on them that not even murderers or drug dealers are subject to. In a few cases, these include being held beyond the completion of their prison sentences, but much more frequently involve restrictions on where they can live and requirements to register with authorities to be included on a publicly accessible registry of sex offenders.

These measures have generally been deemed a constitutional exercise of government authority, but sometimes they go too far — not a little too far, but a lot too far. Such an instance is now pending before the New Hampshire Supreme Court, which heard arguments last week in the case of “John Doe.”

Doe is a Manchester man who pleaded guilty in 1987 to sexually assaulting his teenage stepdaughter, underwent two years of court-ordered sex offender counseling and completed his sentence in 1990. Now in his 60s, Doe is fully disabled, has difficulty getting around and lives in a boarding house. Despite the circumstances, Doe is subject to a burdensome regime of sex offender registration requirements and lives in fear of harassment should his neighbors go online and discover his status.

What makes this situation truly disturbing is that Doe’s conviction and the completion of his sentence predated the advent of the registration requirements in 1992 and various subsequent iterations that toughened the rules. Thus, he must abide by rules that were not in effect when his offense and conviction took place, and no recourse exists for him to have his name removed from the registry even after 30 years in which he has not reoffended.

Doe’s lawyers contend that this violates a provision in the state constitution prohibiting punishment under ex post facto laws and denies Doe’s procedural due process rights as well.

Justice Gary Hicks, noting these circumstances, wondered reasonably enough why Doe should not “have some escape hatch, some minimal level of due process to address the further reputational loss?”

Because, according to lawyers for the state of New Hampshire, the rules are not punitive but only regulatory in nature. “The registry does not cause … reputational damage, nor do any of the amendments,” Assistant Attorney General Dianne Martin told the court. The state argues that the restrictions are only in place to keep track of sex offenders.

Doe’s lawyer, Bill Chapman (who, in the interest of full disclosure, frequently represents the Valley News in other matters), countered that the requirements “shame him in a way that is totally different from what happened historically when someone might have had to go into the public square for a couple of days. He’s in the virtual public square every single day for anybody who goes on the state police website.”

It doesn’t matter much what fig leaf the state chooses to cover its naked bit of sophistry. This practice strikes at the heart of two fundamental principles of legal fairness: that once a sentence has been served, offenders have completed their obligations to society and are free to make what they can of their post-prison life without being subject to loss of liberty through the actions of government; and that no one should be subject to sanctions imposed retroactively. We suspect that Doe will attract little public sympathy, but these are dangerous departures from sound legal principles, and the fact that they are being applied mostly to sex offenders does not make them less dangerous. Sanctions that apply to one despised group today can easily become the norm for others whom society comes to loathe and fear.