SCOTUS & Us:
The U.S. Supreme Court's Rulings On
"Sex Offenders" & Child Pornography,
1982 to Present
by Eric Tazelaar
Accompanying this article is a table [click to download, can be opened in any spreadsheet program e.g. Excel or Open Office] showing each of thirty-three cases which have gone before the U.S. Supreme Court since 1982 having something to do with sex offenders or child pornography or, in several cases, children's access to pornography. In other words, sexual transgressions often involving kids.
The idea was to briefly describe each case, how the Court ruled and, from an individual liberties' point of view, indicate whether the ruling was favorable or not as well as how each Justice voted individually. Further, each Justice was given an overall score derived from all the cases they participated in which was expressed as a tally of their favorable vs. unfavorable votes and then as an absolute score derived from those votes. Their political party affiliation is also noted as well as the President who appointed them.
Each case is linked to the wonderful SCOTUS site OYEZ.org maintained by the Chicago-Kent School of Law where, thrillingly (if you're thrilled by such things) all of the oral arguments can be listened to as well.
I found this listening option to be fascinating and did listen to a number of them, gaining some insights into courtroom strategies which I will, nevertheless, likely never put to profitable use.
By listening to the oral arguments, I learned that the attorney challenging the State of Alaska in Smith v. Doe (unsuccessfully) was out of his league and failed to fully and effectively argue that Alaska's registration scheme was, in reality, ex-post facto punishment. This is particularly tragic given that the Smith decision would facilitate wildly expansive regulations of “sex offenders” in every state thereafter.
One might expect that Republican Justices would score, on the whole, less favorably than Democratic Justices. While this is often true it is perhaps by less than one would have thought. Indeed, the outstanding performances of two past Republican Justices, now long sadly off of the scene, helped to skew the overall results to make the Republicans appear far less horrid than they have since become. Since they are now gone, and the Republicans who remain far less inclined towards justice, I expect the only glimmers of criminal justice liberality that might emerge from the Court to now come from the Democrats.
John Paul Stevens, a Republican appointed by President Gerald Ford, was the outstanding exception to the "Democrats are more liberal" rule and was hands-down the highest rated Justice of all, Democrat or Republican, in this evaluation. He wasn't perfect but, out of twenty-five cases, he scored favorably on all but five. Sadly, he retired some years ago and the Court hasn't been the same since.
The other, slightly less dazzling, Republican exception was David Souter who, nevertheless, did do quite well with thirteen favorable rulings out of a total of eighteen. After Stevens, he scored the second highest of all of the Justices. Like Stevens, he has retired from the Court.
Contrast that with the other Republicans, such as Rehnquist and the (very) late Warren Burger or the retired Sandra Day O'Connor, who all scored at the bottom end of this scale. Scalia was slightly less miserable than the other three but pretty awful in his own right and disinclined to find very little which states might do to punish people that the federal branch should find objectionable.
All of those but O'Connor have now gone to their just rewards. O'Connor, Rehnquist, and Scalia were Reagan appointees, a fact which should help me in my rejoinders to those who imagine Reagan to be one of the "greatest presidents" and so close to being libertarian that any difference almost doesn't matter. His malign contributions to criminal justice, both in the "War On Drugs" and in his SCOTUS appointments which helped to facilitate the massive buildup of the carceral state, are very apparent in retrospect.
Sotomayor and Kagan are still too new for us to really predict how they might do in future cases but Kagan's rulings are quite a bit better than Sotomayor's who is, nevertheless, slightly more likely than not to rule favorably.
Kagan is a bit of a pleasant surprise here (so far) as she was the Solicitor General who argued for the power of the U.S. to indefinitely lock-up federally convicted sex offenders after their term of imprisonment had ended in Comstock v U.S. Of course, we can hope that she was simply doing her job and that her opinion may have shifted since 2010. Even so, in any reexamination of Comstock, she will likely recuse herself because of her earlier role.
It should be pointed out, however, that in Comstock the only justices to get that decision right were Thomas and Scalia! Everyone else, Ginsburg, Breyer, Sotomayor, Roberts, Alito and, yes, even Justice Stevens all ruled for ex-post facto incarceration which they justified as a “civil”, i.e. not criminal, remedy. This is a case that should shake up any simplistic assumptions one might have of our Justices; Comstock was a major defeat for our cause.
Breyer and Ginsburg, as Democrats, have a much longer track record on the Supreme Court than do Sotomayor or Kagan and have the most favorable ratings after Stevens. Still, Ginsburg was quite uneven and cast some really horrible votes such as in Comstock, Carr or any of the child pornography cases. She appears to have a real gift for her inability to discern ex-post facto punishment.
These scores of individual Justices are not weighted according to the perceived significance of the decisions even though some of these cases, such as Smith v. Doe and Connecticut v. Doe (more on those in a bit) were far more momentous in their effects than others. Instead, they are presented objectively and without further interpretation as simple up-or-down tallies.
Another very important case, to my mind is Hendricks v. Kansas which preceded Comstock in establishing the power of states to indefinitely lock up “sex offenders” in “civil commitment treatment centers” after completing their terms in prison. This set the scene for a new category of incarceration now implemented by twenty states as well as the federal government (for federal prisoners) in which those leaving prison, having served their entire terms, are re-incarcerated in “treatment facilities” that are, for all intents and purposes, indistinguishable from prison. With no end-dates to their sentences, and no real “sentences” at all but “civil commitments”, this amounts to lifetime imprisonment for thousands of men and a handful of women.
The child porn cases of New York v. Ferber in 1982, Osborne v. Ohio in 1990, U.S. v. X-Citement Video in 1994 and Ashcroft v. ACLU in 2001 have shaped child pornography laws so that now virtually anything can be considered illegal today and frequently is. The effect has been to create a culture of pervasive self-censorship in which the exercise of expression is self-suppressed out of tremendous uncertainty for how the laws might regard their work.
“Sex offender registration laws... have been given unfettered freedom by a deferential judiciary. It has been a perfect storm of intersecting legislative action and judicial inaction that has produced ever-escalating registration burdens.”
— Catherine Carpenter, Professor of Law, Southwestern Law School.1
The two really momentous SCOTUS decisions that have had the most crushing effect upon registered “sex offenders” both came in 2003 and were Smith v. Doe and Connecticut v. Doe.
In Smith v. Doe, the question before the Court was “Does the Ex-Post Facto Clause of Article I, Section 10 prohibit the Alaska Sex Offender Registration Act's registration requirement as a retroactive punishment?” The Court's answer was “no.” In fully accommodating Alaska, their opinion declared that the Registry was not punishment but a civil measure taken by society for its own protection. Its purpose, which some might see as punishment, was intended to regulate rather than to punish. Therefore, its implementation could not be viewed as ex-post facto punishment.
In Connecticut v. Doe, the question before the Court was “Does the Fourteenth Amendment's Due Process Clause require that persons convicted of sexual offenses subject to Connecticut's "Megan's Law" receive a hearing before the public disclosure of their registry?
Again, their answer was “no.” They explained how the Registry was a civil measure to advance the laudable goal of public safety, not to act as retrospective punishment, so that one's appearance on the Registry, or any changes to further enhance public safety that might be made to the Registry in the future, did not require due process, including a current diagnostic finding of “dangerousness”, beyond that which saw their subjects originally convicted, even if decades earlier. Registrants could have no expectation of privacy nor immunity from the effects of being on a public registry no matter how long before they had been prosecuted nor the number of years they had lived crime-free in the community.
Together, these two rulings gave a green light to the states to launch an avalanche of sex offender registration laws and myriad additional restrictions that now flow from them, such as the minimum distance requirements between a sex offender's home and local schools, playgrounds, parks, day care centers, etc.
These are the laws that caused a registered “sex offender” in Michigan to freeze to death because the local homeless shelters refused to take him in during some of the coldest weather in memory simply because they were “too close” to schools and parks. The laws of that state prevented them from providing him shelter that would have saved his life.
These are the laws which today compel a seriously ill Registrant in South Carolina to sleep in a tent in the frigid woods without his electrically-operated oxygen regeneration equipment and other medical devices essential to his health, because his house was found to be too close to a “nursery school” that, unbeknownst to him or his wife when they bought it, was being operated in a private home around the block. The registration authorities who had previously given their approval for their home's location at the time of its purchase later retracted it and threatened to arrest him if he did not move out.
These are the laws that created an online registry, “Megan's Law” websites, which now operate in each of the fifty states as scarlet letters of vilification for all of the world to see and for some to use in preparation for committing violence against, and occasionally the murder of, Registrants.
These are the rulings which paved the way for the federal Adam Walsh Act as well as the brand new International Megan's Law (IML) which have deeply insinuated the U.S. government into the lives of Registrants and have limited them to within very narrow boundaries of existence.
AWA has strictly limited the jobs that Registrants could perform and their movement from one state to the next while mandating the frequency and events which mandate their in-person appearance in police stations to avoid going to prison for a decade or more.
IML now takes those restrictions further by completely preventing their travel abroad through the imposition of an impassable barrier which amounts to internal banishment. A very high virtual wall now effectively encircles the entire country if you're a sex offender; not to keep Mexicans and Muslims out of the U.S., a front-and-center election promise now being fulfilled by President Trump, but to keep American citizens in.
Again, here's Catherine Carpenter:
“Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.”
As of this writing, one seat remains vacant on the Supreme Court. Two of the Justices are now quite elderly; Ruth Bader Ginsburg is eighty-three and Anthony Kennedy, eighty. Stephen Breyer is not far behind at seventy-eight. So it is not at all inconceivable that Donald Trump, our new President, might find himself in the position of filling three or more Supreme Court vacancies.
Three of the relatively young remaining Justices, Chief Justice John Roberts, Clarence Thomas, and Samuel Alito, have shown little outward sign that they will loosen the grip of the Registry on people's lives. They belong, not to an earlier generation of Republican defenders of individual liberty like Justice Stevens, but to a generation imbued with the values of cultural conservatism and social purity that emerged in the era of Ronald Reagan.
The remaining two, Justice Elena Kagan and Sonia Sotomayor, offer perhaps the most promise to any serious challenge to the Registry although any such hope must be tempered by the experience of past disappointment.
Generational death, both of ideas and of people, in America as a whole or in the rarefied atmosphere of the Supreme Court's inner sanctum, invariably brings striking cultural changes and can explain how Alabama sodomy laws, which punished adult men for having sex in their own homes, can be ruled constitutional in one decade and unconstitutional several decades later.
A very great irony is that the cascade of laws defining, punishing and regulating “sex offenders” for the entirety of their lives have expanded at the same time as the lives of gay citizens have become immeasurably freer. This is the grand bargain between liberalism and cultural conservatism which saw the ascendancy of the concept of the “consenting adult” utterly vanquish any measure of child and adolescent freedom, sexual or otherwise.
This is an irony which has not escaped the attention of a growing number of writers and public figures who are affirming what we have been saying for a very long time. I take some encouragement from these increasingly vocal expressions of discontent which have begun to emerge against the ceaseless expansion of the hysterical “sex offender” carceral state.
It will, most likely, be the courts which will provide us with any measure of relief from the terrible effects of decades of ill-considered and savage laws if any is to come to us. Our lawmakers have proven either too cowardly or too savage, themselves, to repeal any of them and the citizenry, it must be said, are too ignorant and bloodthirsty, mostly as a result of the failures of journalism, to demand any but ruthless changes in law.
Still, if defenders of liberty begin to publicly criticize those laws, as more are doing, and if registered sex offenders, themselves, along with their families, continue to grow in number (there are more than 800,000 Registrants in the U.S. today, many with families) and organize themselves, as they are now doing, and raise their voices in protest, then there might be some elected representatives bold and brave enough to respond to the Registry's profound and pervasive cruelty.
Some legal scholars believe that International Megan's Law and, perhaps, the fundamental legitimacy of the Registry itself will be on the Court's agenda in the near future.
Several other, nearer-term, cases offer a real possibility that they might be proven right. One is the case of a registered “sex offender”, Lester Gerard Packingham, who has argued that the First Amendment shields him from being blocked by North Carolina from social media websites that children utilize. The Supreme Court has granted certiorari in this case and it has received a great deal of support from a number of high-profile civil libertarians and attorneys.
Justice Kagan, in another case that offers a very tantalizing possibility for challenging the Registry, has rejected Michigan's request to put a hold on a lower court decision about the state's sex offender registry law while the state appeals. A federal appeals court ruled in August that Michigan unconstitutionally puts additional restrictions on sex offenders long after their convictions. This is very significant and may signal a shift in the Court's accommodation of ex-post facto as it concerns sex offenders and also for coming from Elena Kagan. Very encouraging, too, is that the challenger to Michigan is the Michigan ACLU. The ACLU, which should be the nation's greatest defender of criminal justice, has been largely silent on Registry issues and “sex offender” justice for many years. Perhaps that is now beginning to change.
If those with a “sex offense” conviction are to gain any relief from the terrible regime of total incapacitation, then it will be because others, not in their position, will come to recognize in their treatment the telltale signs of oppression and the potential for that oppression to extend into their own lives and the lives of people they know.
It may be that, in the extremes to which bad laws have been taken, lie the very seeds of their destruction. It is imperative that each of us do everything we can to bring these injustices to light.
Meanwhile, we await the confirmation of Neil Gorsuch for that empty seat on the Supreme Court nominated by, of all people, Donald Trump as we continue to find ourselves speculating, ineffectually, upon the longevity of Ruth Bader Ginsburg, a survivor, so far, of both colon and pancreatic cancer.
To turn a Churchillian phrase on its head: never have so many owed so little to so few while hoping for so much.
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Eric Tazelaar is a frequent contributor to Nambla.org
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