Writing for the majority in Smith, Justice Anthony Kennedy took it for granted that collecting and disseminating information about people convicted of sex offenses made sense as a public safety measure. But that premise was always doubtful.

The vast majority of sexual assaults, especially against children, are committed by relatives, friends or acquaintances, and the perpetrators typically do not have prior sex-offense convictions. That means they would not show up on a registry even if someone bothered to check.

It is therefore not surprising that research finds little evidence to support Kennedy’s assumption that publicly accessible registries protect potential victims. Summarizing the evidence in a 2016 National Affairs article, Eli Lehrer noted that “virtually no well-controlled study shows any quantifiable benefit from the practice of notifying communities of sex offenders living in their midst.”

To reinforce the logic of registries, Kennedy averred that “the risk of recidivism posed by sex offenders is ‘frightening and high.’” He was quoting his own opinion in an earlier case, which in turn relied on an unsubstantiated estimate from a source who has publicly and repeatedly disavowed it.

According to Kennedy’s paraphrase, “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” By contrast, a 2003 Bureau of Justice Statistics study found that the three-year recidivism rate for sex offenders was 3.5%.

Studies covering longer periods find higher recidivism rates, but still nothing remotely like 80%, even for high-risk offenders. Despite its empirical emptiness, Kennedy’s “frightening and high” claim has been quoted again and again in legal briefs and judicial opinions across the country.

Although registries are ostensibly based on the risk of recidivism, they apply indiscriminately to broad classes of people, even when there is little reason to think they pose an ongoing danger. Dissenting in Smith, Justice Ruth Bader Ginsburg noted that Alaska’s law “applies to all convicted sex offenders, without regard to their future dangerousness.”

One of the men who challenged Alaska’s law, Ginsburg pointed out, “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.” A court determined that “he had been successfully rehabilitated,” based partly on “psychiatric evaluations” indicating that he had “a very low risk of re-offending” and was “not a pedophile.”

That man nevertheless was required to renew his registration four times a year for the rest of his life. The online registry included his name, photograph, criminal record, address, physical description, date of birth and place of employment, along with the license plate numbers of vehicles he used.

Kennedy minimized the consequences of publicly branding people as presumptively dangerous sex offenders, calling it “less harsh” than revocation of a professional license. But as Justice John Paul Stevens noted in his dissent, there was “significant evidence of onerous practical effects of being listed on a sex offender registry,” ranging from “public shunning, picketing, press vigils, ostracism, loss of employment and eviction” to “threats of violence, physical attacks, and arson.”

Those predictable costs, combined with legal restrictions on where registrants may live and which locations they may visit, undermine rehabilitation and continue to punish registrants long after they have completed their sentences. That is why several state and federal courts have concluded, contrary to what the Supreme Court said in Smith, that registration schemes are punitive in effect.

Activists who oppose registration will call attention to that reality during a vigil at the Supreme Court on Tuesday morning. They are clearly right in arguing that the illusory benefits of public registries cannot justify the burdens they impose.

Jacob Sullum is a senior editor at Reason magazine.

JACOB SULLUM — This Sunday marks the 20th anniversary of Smith v. Doe, a Supreme Court decision that approved the retroactive application of Alaska’s sex offender registry, deeming it preventive rather than punitive. That ruling helped propagate several pernicious myths underlying a policy that every state has adopted without regard to its justice or effectiveness.

Writing for the majority in Smith, Justice Anthony Kennedy took it for granted that collecting and disseminating information about people convicted of sex offenses made sense as a public safety measure. But that premise was always doubtful.

The vast majority of sexual assaults, especially against children, are committed by relatives, friends, or acquaintances, and the perpetrators typically do not have prior sex-offense convictions. That means they would not show up on a registry even if someone bothered to check.

It is therefore not surprising that research finds little evidence to support Kennedy’s assumption that publicly accessible registries protect potential victims. Summarizing the evidence in a 2016 National Affairs article, Eli Lehrer noted that “virtually no well-controlled study shows any quantifiable benefit from the practice of notifying communities of sex offenders living in their midst.”

To reinforce the logic of registries, Kennedy averred that “the risk of recidivism posed by sex offenders is ‘frightening and high.'” He was quoting his own opinion in an earlier case, which in turn relied on an unsubstantiated estimate from a source who has publicly and repeatedly disavowed it.

According to Kennedy’s paraphrase, “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” By contrast, a 2003 Bureau of Justice Statistics study found that the three-year recidivism rate for sex offenders was 3.5 percent.

Studies covering longer periods find higher recidivism rates but still nothing remotely like 80 percent, even for high-risk offenders. Despite its empirical emptiness, Kennedy’s “frightening and high” claim has been quoted again and again in legal briefs and judicial opinions across the country.

Although registries are ostensibly based on the risk of recidivism, they apply indiscriminately to broad classes of people, even when there is little reason to think they pose an ongoing danger. Dissenting in Smith, Justice Ruth Bader Ginsburg noted that Alaska’s law “applies to all convicted sex offenders, without regard to their future dangerousness.”

One of the men who challenged Alaska’s law, Ginsburg pointed out, “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.” A court determined that “he had been successfully rehabilitated,” based partly on “psychiatric evaluations” indicating that he had “a very low risk of re-offending” and was “not a pedophile.”

That man nevertheless was required to renew his registration four times a year for the rest of his life. The online registry included his name, photograph, criminal record, address, physical description, date of birth, and place of employment, along with the license plate numbers of vehicles he used.

SUMMARY OF THE DECISION

The appeals court reversed in part and affirmed in part the district court’s dismissal of an action alleging that the retroactive application of Idaho’s Sexual Offender Registration Notification and Community Right-to-Know Act, Idaho Code § 18-8301, et seq., is unconstitutional. For the sake of limiting the length of this analysis, we are omitting discussion regarding the dismissed claims which were upheld by the appeals court. The appeals court held that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. Specifically, the appeals court held that the district court erred by (1) construing appellants’ ex post facto claim as an as-applied challenge; (2) applying the “clearest proof” standard at the motion to dismiss stage; and (3) finding the outcome of the Smith v. Doe, 538 U.S. 84 (2003) factors analysis to be controlled by precedent. The appeals court held that to survive a motion to dismiss, appellants only had to plausibly allege that the amended SORA, on its face, was punitive in effect and case law did not foreclose a finding that SORA was punitive.

HISTORY OF SORA

The state of Idaho began requiring sex offender registration in July 1993. It initially imposed only a duty for persons convicted of certain felony sex crimes to register with their local sheriff. In 1998, Idaho passed SORA, imposing the more expansive framework still in place today, designed to create public access to information about persons convicted of sexual offenses. In addition to creating a central registry of public sex offender information, SORA expanded the category of offenders required to register, codifying a catalog of eligible offenses in Idaho Code § 18-8304. The 1998 version of SORA required all registrants to undergo a “psychosexual evaluation.” Registrants convicted of a subcategory of offenses, listed in Idaho Code § 18-8312, and found to pose such a risk based on their evaluation, were deemed “violent sexual predators.” All registrants, except for violent sexual predators, were eligible to petition the district court for a show cause hearing to determine whether the person could be exempted from the registration requirements and its obligations after a ten-year period of registration. The 1998 act was applied retroactively to any person convicted of a newly-eligible offense after July 1, 1993. The act was also applied retroactively to anyone who entered the state of Idaho after July 1, 1993, who had been convicted of any crime that was “substantially equivalent” to the act’s listed offenses.

As what has been the practice in most states, the Idaho legislature did not stop heaping on requirements after the 1998 amendments. They amended again in SORA 2001, 2002, 2004, 2005, 2006, 2008, 2009, 2010, 2011, 2012, and 2013. Each set of amendments was applied retroactively in the same manner as the 1998 act. In general, these amendments expanded SORA’s framework, adding to the list of eligible offenses and heightening the obligations of registration. Opinion at 8. SORA was significantly changed in 2011. As in prior years, new offenses were added to the list of crimes requiring registration. There was also a significant increase in the amount of information required at registration and a decrease in the amount of time provided to comply. Additionally, registrants were newly required to provide advance notice of any travel lasting longer than seven days and to provide in-person notice of their presence to law enforcement in the jurisdictions they travel to. Opinion at 8.

MORE DETAILED ANALYSIS

We are focusing this analysis on the three most significant aspects of the appeals court’s decision. The appeals court held: (1) the district court erred in construing Appellants’ ex post facto claim as an as-applied challenge; and (2) it erred by applying the “clearest proof” standard at the motion to dismiss stage; and (3) it erred in finding the outcome of the Smith factors analysis controlled by precedent.

First, in Seling v. Young, 531 U.S. 250 (2001), the Supreme Court held that ex post facto claims based on the punitive effect of purportedly civil statutes cannot be construed as “as-applied” challenges.  Id. at 263–65; Young v. Weston, 344 F.3d 973, 976 (9th Cir. 2003). Rather, courts must evaluate a law’s punitive effect based on a variety of factors—such as the terms of the statute, the obligations it imposes, and the practical and foreseeable consequences of those obligations—in relation to the statute on its face. See Seling, 531 U.S. at 262; Young, 344 F.3d at 976. Opinion at 12.

Second, the “clearest proof” standard refers to a plaintiff’s ultimate burden to sustain an ex post facto challenge. When a statute is expressly civil in intent, the Supreme Court has stated that only the clearest proof is sufficient to override the legislature’s intent and render the putatively civil regulation a criminal penalty.  Smith, 538 U.S. at 92. To survive a motion to dismiss, however, Appellants only had to plausibly allege that the amended SORA, on its face, is punitive in effect. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Daniel v. Fulwood, 766 F.3d 57, 61–62 (D.C. Cir. 2014) (“At the motion to dismiss stage, of course, a plaintiff need only show that his ex post facto claim—like any other claim—is ‘plausible.’ ”).

The appellate court noted that, “Accepting the allegations in the First Amended Complaint as true, all Appellants are retroactively subject to lifetime registration terms. By the SORA amendments, Idaho has retroactively imposed—in addition to heightened registration obligations—restrictions on housing, employment, and travel. Registrants are prohibited from being on or within 500 feet of school grounds when children under the age of eighteen are present, with some exceptions. The same restriction applies to where registrants may reside. Registrants now must provide notice to law enforcement both before and during certain kinds of travel…” Opinion at 13.

Third, the appellate court explained the reason why Smith v. Doe is not controlling precedent. It appears that they have found the case of Does v. Snyder, 834 F.3d 696 (6th Cir. 2016) to be persuasive. The Snyder court explained their reasoning why Smith was not controlling in their decision. They Snyder court held that, “A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.” Does v. Snyder, 834 F.3d at 705.

This case will be returned to the district court for further proceedings, which may include a trial on the remaining issues. Due to the volume of litigants and complexity of all the issues, this case is likely to drag out for years. In the end, NARSOL is hopeful that the case will result in a favorable outcome.

The discussion of this decision and this issue on the Registry Matters podcast with Larry and Andy can be heard here.