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No punishment without a law, part 2

In our last post, we were discussing a recent case from Sixth Circuit, where the court found sections of Michigan's Sex Offender Registration Act (SORA) unconstitutional because it violated the U.S. Constitution's prohibition against retroactive punishment. The SORAs have been permitted because they are supposed to be merely administrative and civil and not confer additional punishment on individuals who have already completed their criminal sentences.

The court noted that Ex Post Facto laws have long been seen as contrary to one of the fundamental principles of representative government, that of "no punishment without a law." The founders noted that such laws were the instruments of tyranny. Justice Marshall noted in 1810 that such laws can also grow out of "sudden and strong passions."

This certainly applies to sex offender laws, most of which were passed based on inflamed fears of child abductions and abuse. The restrictions they impose are virtually uniform in lacking any empirical basis, and in the two decades since their original passage, the research has found that they provide virtually no improvement in public safety and they can destroy the lives of those they punish.

Michigan's law was amended to add a residency restriction that prohibited a registered offender from living, working or even "loitering" within 1,000 feet of a school. The court includes a map of Grand Rapids with an overlay of the restricted zones, show a patchwork of often overlapping areas. 

The court points out how burdensome avoiding these prohibited areas can be for offenders and that it can make finding a home or work virtually impossible. The court then equates these laws with ancient shaming punishments and banishments. 

And these "administrative" measures carry criminal punishment. What is more, the violations of these "administrative" restrictions carry criminal sanctions. Violations can mean a return to prison.

Ultimately, these laws do not further public safety as they make it almost impossible for these individuals to be successfully reintegrated into society and have created a class of individuals who are "untouchable." Research has found that these laws can even cause recidivism because of the restrictions, leaving some with few options besides criminal activity.

This ruling is welcome, although it is limited. It will take action by the U.S. Supreme Court to definitively stop states from imposing Ex Post Facto laws disguised as administrative regulations.



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