A Stitch in Haste

The Missouri Supreme Court will hear a multiple-party challenge to the state's Sex Offender Registry Act ("SORA"):

Now a mother of five in her 30s, [Jane Doe 1] was 20 when she had consensual sex with a 15-year-old boy she thought was 18. She pleaded guilty in 1992 but received a suspended imposition of sentence and thus has no criminal conviction. Another client, John Doe 1, made the list for improperly touching his 15-year-old girlfriend when he was 17.

Then there is John Doe 7. The 46-year-old resident of eastern Jackson County made the list for child abuse, one of several non-sexual offenses that require the same lifetime registration. He was accused of bruising his son by spanking with a belt. The allegation was raised two years later during a divorce dispute, and he pleaded guilty on the advice of his lawyer with the promise of probation, a suspended sentence and no criminal history. It was before Missouri passed SORA, and it could very well have altered his decision to plea.

That last point is very interesting, and one that I had not previously considered. Adding earlier offenders to a newly-crafted registry may not constitute double jeopardy or an ex post facto law, but it still may qualify as a due process violation, especially for those who pleaded guilty rather than having been convicted by a jury. If they would not have pleaded guilty knowing that it would get them on the registry, then their plea was not fully informed and is arguably tainted. Furthermore, I wonder to what extent sex offender registries are having this unintended consequence going forward (i.e., "As your lawyer, I am advising you to go to trial, Client, because if you plead guilty then you're on the registry. That's a lifetime sentence anyway, so we may as well take our chances with the jury.")

In any case, if the rationalization for registries is the assertion that sex offenders have a high recidivism rate, then would it be unreasonable to require the state to provide some evidence that a person does in fact pose a "repeat offender" risk before he or she goes on the registry? Not necessarily "beyond a reasonable doubt" or even "by a preponderance of the evidence." Perhaps an analogy to mere "probable cause" (whatever that means anymore). Just something above and beyond the conviction or guilty plea itself. Something to demonstrate not just guilt, but some demonstrable and individualized probability of a repeat offense.

Just as we don't tolerate idiocies such as "all Irish are predisposed to drinking" or "all blacks are predisposed to crime" or "all gays are promiscuous," why should we tolerate the stereotype that "once a sex offender, always a sex offender"? These John and Jane Does certainly serve as counterexamples. And they deserve not to be persecuted on top of being prosecuted.