Guy Hamilton Smith: Nine Families from Missouri

Two things happened this past week that have been in process for years. Most important first: we went to trial. Nine pseudonymous plaintiffs in a civil rights lawsuit offered evidence in a federal trial in Jefferson City, Missouri about the impact that the sex offense registry has had on them. This case, like many others like it around the country, has largely centered on the question of whether or not the registry is punishment. Amongst the claims that survived summary judgment were Ex Post Facto (the notion that you cannot retroactively increase one’s punishment), and the Eighth Amendment — Cruel and Unusual Punishment.

Unlike any other similar case, however, our plaintiffs include not only those who are required to register, but their families as well, raising the specter of collective punishment. Sons and daughters. Husbands and wives. The stated purpose of the registry is that it is meant to protect the public, and particularly children. While the expert witnesses in the case have testified that is ill-suited to that goal, a PhD was not required to understand the ways that the registry undermines the safety and wellbeing of anyone connected to it, given the evidence offered by our plaintiffs.

Armed vigilantes showing up at your family’s doorstep. Repeated and unexpected job losses despite disclosing your past when hired. Divorce. Eviction. Threats of violence. Having to change schools over and over and over. Severe harassment. Police who are indifferent to offering protection. You never know when the next shoe is going to drop, nor how far that drop will be, nor how to protect yourself from it. Even during the course of this litigation, it was discovered by a classmate of one of our child plaintiffs that her father was listed on the Missouri sex offense registry for a crime that occurred decades in the past — well before she was even born. Previously popular, she became a pariah overnight, and the recipient of bullying so severe her father applied for a protective order. The bullying occurred over the course of a year, culminating in her attempting to end her life. She only survived because her father discovered her and rushed her to the emergency room. Because she survived, she got to come to court, and I got to shake her hand. If the registry is meant to protect children, it did not protect her.

Another plaintiff had left Missouri to raise his family in another state where he does not have to register. He testified compellingly about how he did not appreciate the burden it had on them until they no longer had to contend with it. In Missouri, he is what is known as a “Tier III sex offender,”¹ often described as the “worst of the worst,” and the “most likely to reoffend.” In another, he is simply another family man, working and raising his kids. Nothing about him changed, of course, aside from his mailing address, highlighting the political and arbitrary nature of these distinctions, largely figuring to how much political animus exists within a given state’s legislature.

As the judge noted at trial, the punishment question is a bit strange. When we talk about punishment in court, we’re talking about the legal definition of it — not what most people would consider punishment. Over the years, when I have explained even to other lawyers and law professors that sex offense registries are often not considered punishment, I have typically been met with confused looks. To put it another way, after the trial concluded it was remarked to me that if someone thinks the registry is not punishment, query whether they would be willing to go on it. There exists some precedent for notion: the late (and great) Christopher Hitchens, having articulated that he did not believe waterboarding was torture, came away with quite a different perspective once he subjected himself to it.

The law, as the saying goes, is an ass. In 2003, the Supreme Court articulated a multi-factor test in Smith v. Doe to determine whether or not a piece of legislation could be legally considered punishment. There, they considered whether Alaska’s first-generation registry was punishment. In a 6-3 decision, over strong dissents from other justices including Ruth Bader Ginsburg, the Court concluded that it was not.

Of course, much has changed in the last two decades both in legislatures, and society. Legislatures took Smith as something as a blank check, and every legislative cycle imposed new and harsher restrictions on people previously convicted of sex offenses, now untethered from any pesky Ex Post Facto considerations — and largely any constitutional considerations at all. Missouri’s registry statutes, like those in nearly every other state, has been serially amended to become more and more burdensome than the law the Court considered in Smith. This shows no signs of abating, absent actions from the judiciary, given the obvious political expediency of repeatedly dunking on a large (and growing), despised, and politically powerless population. Indeed, the desire to guard against this very phenomenon lay at the heart of the Ex Post Facto clause, as Professor Wayne Logan writes.

Society next. Smartphones, once gimmicks, are now ubiquitous. The Court did not, and likely could not, have predicted the rise of third-party data brokers that package and commodify registry information and push it directly to consumers through a variety of means, including apps that alert people when they are within a certain GPS perimeter of an address where someone on the registry lives. Google, fledgling startup when Kennedy put pen to paper in Smith, is now a verb. Indexing of registry information ensures that even searching the address of a business will inform one if anyone listed works there, let alone someone’s name. As we move into this Brave New World of facial recognition and artificial intelligence next, who knows what will become possible. While Justice Kennedy concluded that Alaska’s registry was akin to a visit to an official archive of information, one need not undertake such a visit to encounter this information any longer. Indeed, one of our plaintiffs young children who had not yet had the conversation with her dad about why he could not take her to the park learned of her father’s registry status by googling their family for a school project.

Without a doubt, criminal record information is public, but there are important differences between that information and what the registry accomplishes. As one of the experts testified, historical criminal record data does not provide one with a person’s current appearance, their home and work addresses, vehicles they operate, and so on. While authorities generally work to maintain a heroic agnosticism on whether or not anyone so listed is a danger, the very selection of certain crimes for this treatment itself implies they are, as Justice Souter recognized more than two decades ago. So, too, does the design and function of modern registries like Missouri’s: sophisticated mapping, search, browsing, and tracking capabilities, representations about whether or not individuals are “compliant” or “non-compliant,” tiering as a shorthand of communicating how dangerous someone supposedly is, and a requirement that people appear in person to law enforcement to update even minor changes to this information on pain of felony conviction. All of this supposes that it is done for a reason, and it is difficult to fathom what reason that is other than the beliefs advanced by and intertwined with the very operation of the scheme: that anyone on it is dangerous, and that affixing to them a hi-tech Scarlet Letter will ameliorate that danger. Neither proposition is supported by evidence in this case, instead both have been undermined fairly severely. Regardless, they are uniquely American articles of faith that would make Nathaniel Hawthorne blush. To paraphrase late Judge Richard Matsch, how are people expected to react to this information? We are, quite simply, not in 2003’s Alaska any longer.

This case is a fairly complex one. Many issues remain to be addressed. But one of the central questions that lurks at the heart of the punishment question here is this: may a court consider the impacts of a law on one’s spouses and children in analyzing whether or not it is punitive? The Court in Smith adopted a multi-factor test (borrowed from a previous case, Kennedy v. Mendoza-Martinez) to determine whether a law can be considered punishment. This post is already long enough, and so I won’t break the test down here. Here’s the CliffsNotes. A law’s effect on one’s loved ones was not an option on the menu, but the Supreme Court indicated that judges might order off-menu: the Mendoza-Martinez factors are not exhaustive, and are instead useful guideposts. As we have suggested, there exists historical precedent for punishment that impacts a person’s family, and one which our founders regarded it as so repugnant they expressly banned it in Article III of the Constitution: the corruption of the blood. Aside from that, there exists nothing else in the rather robust American legal arsenal of punishments (or, civil regulatory schemes, if you happen to be an elected official or work for one) to even compare it to. It stands alone, and as one of the experts testified, we are in fact the only place on the planet that has blanket, public-facing registries. The closest match is Western Australia, and even they limit the information disclosed. One of the many brutal examples of American exceptionalism.

It is still, hard as it may be to believe, not over. Whichever way the judge rules, this case will almost certainly be going to the Eighth Circuit Court of Appeals next. I, of course, have no idea what the ultimate outcome is going to be. If I could tell the future even five minutes in advance, I would be making my living at the horse track. I am twice divorced, and the only time I put money on a horse, I lost twenty dollars. A heroic lawyer I met in a past life sponsored my admission to the Eighth Circuit, and I have every intention of making him glad to have done so.