Ruth Bader Ginsburg (1933-2020)
When the Supreme Court of the United States decided Smith v. Doe in 2003 – wrongly, in my opinion – only two justices dissented with the opinion of the majority. Justice Breyer and Justice Ginsburg. Yesterday we lost one of them.
Since 2003, Smith v. Doe has been a noose hanging over our heads. The most cited case whenever the court had to justify taking a position that the registry is not punishment. No matter what was piled on, because Smith v. Doe said it wasn’t punishment, it wasn’t. I had always hoped that a case would make it to the court quickly enough so that Justice Ginsburg could hear it. If she felt the registry, in its 2003 form, violated the constitution, she would certainly feel the 2020 version did even more. Unfortunately, that hope is lost and the world has lost an extraordinary jurist.
Rather than try to explain in my own words what Justice Ginsburg did for our cause, I will copy and paste the dissenting opinion in Smith v. Doe below and let the words Justice Ginsburg wrote explain it,
As JUSTICE SOUTER carefully explains, it is unclear whether the Alaska Legislature conceived of the State’s Sex Offender Registration Act as a regulatory measure or as a penal law. See ante, at 107-109 (opinion concurring in judgment). Accordingly, in resolving whether the Act ranks as penal for ex post facto purposes, I would not demand “the clearest proof” that the statute is in effect criminal rather than civil. Instead, guided by Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), I would neutrally evaluate the Act’s purpose and effects. See id., at 168-169 (listing seven factors courts should consider “[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute”); cf. Hudson v. United States, 522 U. S. 93, 115 (1997) (BREYER, J., concurring in judgment) (“[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand.”).[1]
Measured by the Mendoza-Martinez factors, I would hold Alaska’s Act punitive in effect. Beyond doubt, the Act involves an “affirmative disability or restraint.” 372 U. S., at 168. As JUSTICE STEVENS and JUSTICE SOUTER spell out, Alaska’s Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism. See ante, at 109, and n. (SOUTER, J., concurring in judgment); ante, at 111-112 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231).
Furthermore, the Act’s requirements resemble historically common forms of punishment. See Mendoza-Martinez, 372 U. S., at 168. Its registration and reporting provisions are comparable to conditions of supervised release or parole; its public notification regimen, which permits placement of the registrant’s face on a webpage under the label “Registered Sex Offender,” calls to mind shaming punishments once used to mark an offender as someone to be shunned. See ante, at 111-112 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231); ante, at 109 (SOUTER, J., concurring in judgment).
Telling too, as JUSTICE SOUTER observes, past crime alone, not current dangerousness, is the “touchstone” triggering the Act’s obligations. Ibid. (opinion concurring in judgment); see ante, at 112-113 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). This touchstone adds to the impression that the Act retributively targets past guilt, i.e., that it “revisit[s] past crimes [more than it] prevent[s] future ones.” Ante, at 109 (SOUTER, J., concurring in judgment); see Mendoza-Martinez, 372 U. S., at 168.
Tending the other way, I acknowledge, the Court has ranked some laws civil and nonpunitive although they impose significant disabilities or restraints. See, e. g., Flemming v. Nestor, 363 U. S. 603 (1960) (termination of accrued disability benefits payable to deported resident aliens); Kansas v. Hendricks, 521 U. S. 346 (1997) (civil confinement of mentally ill sex offenders). The Court has also deemed some laws nonpunitive despite “punitive aspects.” See United States v. Ursery, 518 U. S. 267, 290 (1996).
What ultimately tips the balance for me is the Act’s excessiveness in relation to its nonpunitive purpose. See Mendoza-Martinez, 372 U. S., at 169. As respondents concede, see Brief for Respondents 38, the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. See ante, at 102-103 (majority opinion). But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not to any determination of a particular offender’s risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. See ante, at 90. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.
John Doe I, for example, pleaded nolo contendere to a charge of sexual abuse of a minor nine years before the Alaska Act was enacted. He successfully completed a treatment program, and gained early release on supervised probation in part because of his compliance with the program’s requirements and his apparent low risk of reoffense. Brief for Respondents 1. He subsequently remarried, established a business, and was reunited with his family. Ibid. He was also granted custody of a minor daughter, based on a court’s determination that he had been successfully rehabilitated. See Doe I v. Otte, 259 F. 3d 979, 983 (CA9 2001). The court’s determination rested in part on psychiatric evaluations concluding that Doe had “a very low risk of re-offending” and is “not a pedophile.” Ibid. (internal quotation marks omitted). Notwithstanding this strong evidence of rehabilitation, the Alaska Act requires Doe to report personal information to the State four times per year, and permits the State publicly to label him a “Registered Sex Offender” for the rest of his life.
Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals.
Rest in Peace Ruth Bader Ginsburg!
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Here is a quote from one of Barre’s dissent…[W]hile both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data … that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not ‘put[] the government through its paces’ … but instead treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'”
This was on gun rights of non-violent felons. What I keyed on was “have failed to show, by either logic or data … “ Think of the registry data that would fall under this type of logic.
Also mentioned is second class right. Another clue to her thinking.
So’s will have no say in this confirmation but with change, comes opportunity. We can remain hopeful.
Here’s how one prospect has handled criminal cases, including Failure to Register:
https://reason.com/2020/09/21/scotus-contender-amy-coney-barretts-mixed-record-in-criminal-cases/
Looks like she’s all but nominated according to FOXNews. Although I do think she may be a better judge than Lagoa, something in Jacob’s linked article gave me pause:
“In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography……….
Writing for the unanimous panel, Barrett said “we need not decide…whether the searches violated the Fourth Amendment.” Even if they did, she said, “the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies.” Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.”
So the same FBI that knowingly presented falsified documents to obtain FISA warrants “could not reasonably have been expected to realize that.”
So in summary, it’s okay to violate the fourth amendment rights of people implicated in “sex crimes.”
Many of the constitutions Ginsberg alluded to were based on the U.S. constitution but were updated to reflect modern technology, understanding of human behavior, science and sociology. Remember, when the U.S. constitution was written, it was an all day event just to travel 30 miles on horseback. Computers, the internet, gps and other technological inventions have added a whole new dimension to modern governments and their relationship with their citizenry.
The concept of registration is not new. Research the history of the McCarran International Security Act of 1950. We were fortunate to have Truman and Eisenhower as presidents. Both vetoed registration schemes because they understood that these schemes conflicted with the core values of our constitution. That was great leadership on their part and the Supreme Court did respond by finding these registration schemes unconstitutional (these opinions can form the basis to find sex offender registration unconstitutional, but no one is taking the time to read these decisions let alone argue them).
GPS, the internet registry and all of the broader issues dealing with registration will take several decades to work it’s way through the courts. Consideration relating to modern technology are written into more modern constitutions. Had gps and the internet existed at the time of this country’s founding, there never would have been a sex offender registry. Our founding fathers would have rejected this concept outright. When Ginsburg refers to these other constitutions, she is recognizing the limitations of our own constitution. I believe in the long run that most aspects of these registration schemes will be found unconstitutional and future generations won’t have to endure what the current generation is enduring.
Detroit
You are right on. One question Kansas and Missouri have both deemed the registry as punitive, and I don’t know how many other States but there must be others. Why is Alaska’s decision of such great weight in swaying Supreme Court decisions. Especially since Alaska with a population of 730,000 and 20% of that is native Eskimo who live on roughly 90% of the land. The state has very little to say about what and how they run there towns and villages. They can’t monitor a registry in these places anyway and they know it. So why is a decision made here the president for the other 360,000,000 population of the rest of the country.
Like it or not, I think a legal distinction can be pretty easily drawn between a “communist registration” type thing (which is what I assume the 50s and 60s registration cases were about) and a registry for people who have been convicted of a crime.
I have a very hard time imagining that the Earl Warren Court would have struck down sex offender registration laws, given that Earl Warren himself had created the first statewide sex offender registration law in the country when he was governor of California.
“Inescapable humiliation” as a result of being subjugated to a post-conviction imposition IS punishment, not collateral consequence.
RGB was not of fan of the US Constitution as she strongly suggested that as Egypt prepared to write a new constitution, Egyptians look to more recently written constitutions than the United States’. Her exact quote: ”
Ruth Bader Ginsburg, Jan. 30, 2012: You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?”
So Ginsburg believed that our constitution did not confer enough rights? Interesting.
It’s true that “constitutional rights” in the US is a narrower concept than, say, human rights. Consider, for example, that the EU constitution includes a privacy right, sometimes referred to as the “right to be forgotten,” that tends to prevent public registries there.
@Jacob
In countries like Norway and Denmark, their citizen’s civil rights are respected and honored about all else. They realize the inhuman and unnatural effects that violating
America is an evil and racist country with a loathsome history of hate. The framers of the U.S. Constitution were deserters and tyrants of England that unfortunately clinged to their puritanical roots. Current America society has since morphed into the same thing their ancestors left England for.
Ruth Bader Ginsberg’s dissent should be distributed to all judges….maybe instill some sense of decency and fairness in them.