<i>Nulla Poena Sine Lege</i>

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

It is disappointing to see the Supreme Court shrink, as it did this week, from a look at the abuses that have come to mark the practice of registering sex offenders in America. Yet the Court did allow to stand a ruling by a lower court that Michigan’s sexual offender registration law violates the Constitution. That means that, at least in the 6th Circuit, reforms will have to come.

We’ve been watching this issue since one of the Sun’s greatest columnists, Lenore Skenazy, got onto the story. She’s been warning that what started out as a narrowly-focussed sex offender registration system set up as a tool for police has expanded to ensnare more than 800,000 Americans and impose on them a Kafkaesque set of rules.

Hundreds of thousands of them don’t belong on any sex offenders list. Yet they are often snared in a system of punishment that was enacted after they committed their offenses. Mrs. Skenazy has written of, say, two 14-year-old boys who landed on the list for roughhousing with two 12 year olds by pulling their pants down and sitting on two younger boys. The teens landed on the list for life. There are thousands in similar predicaments.

The case the Nine declined to hear is known as Does v. Snyder. The Does are several men and a woman who landed on Michigan’s list under its Sex Offender Registration Act. The law was enacted after they’d been sentenced for their crimes and punished retroactively. The Court ruled it has had on each an impact that “reaches far beyond the stigma of simply being identified as a sex offender on a public registry.”

Because of restrictions on living near a school zone, the court noted, some “have had trouble finding a home in which they can legally live or a job where they can legally work.” Restrictions have also kept those with children or grandchildren “from watching them participate in school plays or on school sports teams.” The Does are barred from visiting public playgrounds with their children for fear of being seized for “loitering.”

It would take a Dante to describe the purgatory of the sex offender list. No doubt some of the burdens are deserved. Michigan, though, tried to palm off on the court the notion that its sex offender list was merely an administrative, regulatory matter. The 6th Circuit was having none of it. Judge Alice M. Batchelder found that the list was “punishment” meted out in violation of the constitutional prohibition on ex post facto laws.

By declining to hear the case, the Supreme Court leaves in place the 6th circuit’s ruling. The circuits are now divided, so the Nine may yet find a case they want to work with. Meantime opportunity knocks for Governor Snyder, a Republican. He has a chance to lead a reform of the way sexual registration is administered. All the states will be watching Michigan’s legislature, owing to a principle Judge Batchelder cited — nulla poena sine lege, no punishment without a law.


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

By continuing you agree to our Privacy Policy and Terms of Use