Sex & Meth Offender Registries: Unconstitutional & Misguided

January 24, 2008 by Stephen Palmer 

State sex and meth offender registries are clear indications that America is progressively forgetting its constitutional heritage and choosing legalistic security over freedom and virtue. In a recent USA Today article, Donna Leinwand reported that, “States frustrated with the growth of toxic methamphetamine labs are creating Internet registries to publicize the names of people convicted of making or selling meth, the cheap and highly addictive stimulant plaguing communities across the nation. The registries–similar to the sex-offender registries operated by every state–have been approved within the past 18 months in Tennessee, Minnesota and Illinois.”

Although the registries are almost universally considered to be expedient, they are clearly bills of attainder, which are expressly forbidden by the Constitution, both on the federal and state levels.

In Article I, section 9 of the Constitution we read that, “No Bill of Attainder or ex post facto Law shall be passed.” Section 10 continues by dictating that, “No State shall…pass any Bill of Attainder…’

The word attainder comes from the Middle English atteindre, which is the act of attainting, staining, disgracing, or tainting, and from the Old French ataindre, meaning to touch upon, seize, accuse, or condemn.

According to St. George Tucker, in Blackstone’s Commentaries, “Bills of attainder are legislative acts passed for the special purpose of attainting particular individuals of treason, or felony, or to inflict pains and penalties beyond, or contrary to the common law.” Offender registries taint the individuals placed on them after they have suffered the penalties stipulated by common law.

The most common argument in favor of the registries is the high rates of recidivism of sex and meth offenders. But this is yet another example of our contemporary tendency to hack at leaves while ignoring roots. We have created a culture — through changes to the Constitution — that weakens the family. The best, most durable, and most responsible method for dealing with the dangers posed by sex and meth offenders is for parents to supervise their children.

But our first tendency is to look outside of ourselves to the government and the power of law to solve societal ills, instead of turning inward and taking personal responsibility to find solutions. Our sense of morality has been, by and large, removed from spiritual roots and is determined instead by mere legality. And, as Aleksandr Solzhenitsyn said, “Whenever the tissue of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man’s noblest impulses.”

Sex and meth offender registries are clear signs of a society that is straying from its roots of public virtue and constitutional government. Ironically, we are using the power of government to solve societal problems that were created by an overzealous government in the first place.

Alexander Hamilton once wrote that, “Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government, principles and precedents which afterwards prove fatal to themselves.” If America is to survive, her people must return to the two things that have made her great: virtue and strict adherence to constitutional forms. Using the force of law to fix societal problems is a temporary solution at best, and at worst, a subtle yet powerful form of tyrannical dependence.

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Filed under: Constitution, Personal Responsibility, Virtue
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Comments

One Response to “Sex & Meth Offender Registries: Unconstitutional & Misguided”

  1. John on November 3rd, 2008 5:46 pm

    While I agree with the spirit of the article, I must disagree most vehemently that state registries listing those guilty of the commission of various crimes deemed unusually heinous with the perpetrator likely to re-offend are not un-Constitutional, nor are they bills of attainder.

    A Bill of Attainder is used to classify an individual or group of individuals as guilty of having committed a crime as a matter of legislation, rather than as a consequence of conviction by a jury or an uncoerced confession on the part of an individual. Bills of Attainder subvert due process of law in determining the guilt or innocense of a particular individual accused of committing a crime. Furthermore, a Bill of Attainder is not punishment for the alleged commission of a crime, it is merely a declaration of guilt in lieu of a trial by jury or a confession. A registry listing the names and addresses of individuals known to have been duly convicted of such crimes in the past which continue to be a matter of public record (i.e., the record of their conviction has not been expunged) in no way constitutes a bill of attainder.

    Nevertheless, there are some instances in which the placement of certain individuals on such a registry could be deemed unconstitutional, and if not defamatory, certainly casting a false light on the individual. A clear example of this would be the appearance of individuals who, while minors, were convicted of engaging in unlawful, but nevertheless consensual sex with their peer or peers. Or an eighteen-year-old young adult convicted of unlawful, but nevertheless consensual, sex with his 15-year-old minor girlfriend he’d been engaging in unlawful, consensual sex with as a minor at 17-years-old just days before. The placement of such an individual on a registry commonly understood by the public to be a list of potentially dangerous sexual predators would be an example of false light, even if every piece of information reported on the list about the behavior of the individual as a minor were factually accurate, especially if (as was the case in the instance I have related), the couple remained together, married, and are raising a family.

    Not only do these regestries occasionally violate the rights of individuals with offenses of false light, in some instances such registries are mistakenly defamatory, falsely identifying an innocent individual as a sexual predator (This has actually happened to a close friend of mine who was mistaken for a different individual sharing his first and last name, but of a different age, and living in a different community. He was actually compelled to utilize the services of an attorney friend of his in order to correct this case of mistaken identification because those running the registry were either incompetant or willfully obstinate.)

    If such registries do nothing more than serve as an easily referenceable and factually correct database of what is already a matter of public record, and such registries do not cast false light, libel, or defame anyone; I assert that such registries are Constitutional and provide a legitimate service to the members of any community.

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