Sep 2011

The Sex Offender Registry Is Not Cruel Or Unusual Punishment – Hester Prynne Would Be Amused

Many of us remember reading The Scarlet Letter in High School. For those that did not have the pleasure or for those that filed the plot of that book away with other, less important trivia, the plot involves a woman, Hester Prynne, punished for her sins of infidelity. The punishment she suffered was not merely prison and contempt, but rather she had to show the mark of her transgression on her person at all times – a bright-red “A” for adultery. She wore this mark in order to alert the public of her shame and to constantly remind herself of her sin. A recent case decided by the Court of Appeals, however, makes the argument that Hester’s “A” is a regulatory measure that does not punish her.

In In re TD, a 15-year old was prosecuted for Second Degree Criminal Sexual Conduct after he and another boy assaulted a female classmate. After years of probation, treatment, and various forms of therapy, the boy was released from court supervision.

But the payment for his crime did not end there. As we have discussed many times on these pages, Michigan has a complex and intricate set of rules that require most sexual offenders to comply with the Sex Offender Registry.

Many times, defendants have argued that the registry constitutes unlawful punishment beyond the prison, probation, or other punitive measures courts impose upon conviction. Most of the time, courts have been reluctant to find that the registry constitutes punishment even though it creates a public database that causes individuals countless problems in finding employment and housing, as well as depriving these individuals with the ability to rejoin the public without the stain of a sexual conviction following them wherever they go. And many times courts rebuffed this challenge. Courts seemed convinced that the registry “does nothing more than create a mechanism for easier public access to compiled information that is otherwise available to the public only through arduous research in criminal court files” and, thus, is not punishment. People v Ayres.

More recently, an opinion of the Court of Appeals began to strip away at this logic. In People v Dipiazza, the court found that registration was punishment to its particular defendant because he was young, had been allowed to have his conviction adjudicated under a statutory deferral program, the Holmes Youthful Trainee Act, and other juveniles in similar situations did not have to register.

Dipiazza marked a substantial turn in the criminal-defense bar’s attempt to counteract the draconian effects of the registry. Of course, the registry has important, practical uses. But oftentimes, especially for young offenders, the registry acts as a mechanism to forever punish kids who make a terrible but ultimately youthful mistake.

The hope that the Court of Appeals has started to turn in the direction of sanity, however, has been dashed by the recent opinion,In re TD. The first court to hear this challenge agreed that the registration requirement was punishment. But the Court of Appeals disagreed. It found that the facts of TD were sufficiently divergent from DiPiazza that the registration requirements were not punishment to its defendant. This was because of several reasons but most importantly because the “victim” in Dipiazzaconsented to the acts and eventually married Mr. Dipiazza.

But this begs the point. If the court felt that the registration requirement was too much to bear for an offender who had sex with his future wife, it implicitly makes the point that the registry punishes those who are required to comply with its provisions. If the registry was punishment for Mr. Dipiazza, it stands to reason that it is punishment for the defendant in TD as well. But apparently, the Court of Appeals does not agree with this logic.

The logic of the Court of Appeals seems to suggest that the scarlet “A” Mrs. Prynne was forced to don was not punishment to her because she was morally culpable for her offenses. Another instance, however, may be punishment if the woman forced to bear the mark was not as morally corrupt as Mrs. Prynne. But this, like the logic in the recent Court of Appeals case, defies common sense. If an act is punishment to one, it is punishment for all. What is left to determine is whether the punishment is just in each case, not whether it punishes.

If you or a loved one believes that the requirements of registration are unjust in your case or if you have any other general questions regarding registration requirements, at Satawa Law encourage you to seek out qualified counsel. Satawa Law has been specializing in these kinds of cases for over 10 years. If you would like more information, please contact us.

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