A Supreme Court Warning About Categorical Dangerousness

The Supreme Court issued an interesting decision earlier today in United States v. Hemani. Before anyone gets excited, the case is about the Second Amendment — not sex offender registration laws. But some of the Court’s reasoning may sound familiar to anyone who follows registry issues and the arguments can be useful.

The government argued that because Mr. Hemani used marijuana a few times a week, he could automatically be prohibited from possessing a firearm, even though there was no evidence he had ever misused a gun or posed a danger to anyone (famously, Hunter Biden was charged under this law also). The Court rejected that argument, warning against giving the government the “broad power to designate any group as dangerous” and then strip away constitutional rights based solely on that label.

The Court repeatedly emphasized the lack of individualized evidence of dangerousness. As Justice Gorsuch noted, the government wanted to impose severe consequences based on a categorical assumption that members of a particular group are dangerous, without showing that the individual before the court actually posed a threat. That should sound familiar.

For decades, sex offender registry laws have operated on a similar premise — that people convicted of sexual offenses remain dangerous for life. As a result, many individuals are subjected to lifetime registration, residency restrictions, travel restrictions, public shaming, and countless other collateral consequences regardless of their age, health, rehabilitation, or decades of law-abiding behavior.

The problem is that the science does not support the idea that risk remains static forever. In the landmark study High-Risk Sex Offenders May Not Be High Risk Forever, researchers Karl Hanson, Andrew Harris, Leslie Helmus, and David Thornton found that sexual recidivism risk declines significantly the longer a person remains offense-free in the community. Even individuals initially classified as “high risk” saw their risk drop dramatically over time and after 15-20 years, even those originally deemed high risk were no more likely to commit a sex offense than someone who never committed one.

That doesn’t mean Hemani invalidates registry laws. It doesn’t. The case deals with a different constitutional right and a different legal framework. But the Court’s skepticism toward blanket assumptions of permanent dangerousness is noteworthy. When government policies continue to impose lifelong restrictions on entire classes of people based on outdated assumptions rather than individualized evidence, courts may eventually be forced to confront the same question raised in Hemani: At what point does a presumption of dangerousness become disconnected from reality?

United States v. Hemani