A Stitch in Haste

I'm obviously late to the party about the "astonishing" news that Ohio may enact some perverted atrocity called a "civil sex offender registry" that would not require a finding of criminal guilt --

It would largely treat a person placed on the civil registry the same way a convicted sex offender is treated under Ohio's so-called Megan's Law.

The person's name, address, and photograph would be placed on a new Internet database and the person would be subjected to the same registration and community notification requirements and restrictions on where he could live.

A civilly declared offender, however, could petition the court to have the person's name removed from the new list after six years if there have been no new problems and the judge believes the person is unlikely to abuse again.

I put "astonishing" in scare quotes because the only thing potentially astonishing about it is the location. One might have expected such a proposal from a more intolerant state with a worse legislative record. But considering that we've gone from mere registries to red-lining to automatic psychiatric confinement to de facto exile, and from child molester registries to open-ended "sex offender" registries to "whatever we feel like registering" registries, the concept of a "civil registry" should not be all that surprising. In any mania against The Others Who Are Destroying America™, there is never a shark to jump; no proposal is ever too extreme.

As for the specifics of the proposal, one would like to think that the Fourteenth Amendment's insistence upon due process would of course preclude such a civil registry from denying the unconvicted their liberty. But that might be wishful thinking. Recall that registries are not considered a "punishment," and thus the standard we all learned in high school civics — proof beyond a reasonable doubt — does not necessarily apply. And by labeling this state-level Star Chamber as a "civil" action, the requirement for a jury trial is also sidestepped (the Seventh Amendment was never "incorporated" to apply to the states).

And how about that laughable "safeguard" that, after a time, a "civil offender" can petition a judge to be removed from the list? Have you ever heard the expression, "You can't unring a bell"? Especially a bell that is rung over the Internet.

Some bloggers couldn't help but draw the comparison to the recent civil forfeiture case in which a man lost $124,700 in supposed "drug money" even though he was never convicted of any drug offense. And the analogy is indeed apt. Because both stories highlight the same unjust chicanery: the notion that the government can, whenever it likes, remove the hurdle of "beyond a reasonable doubt" simply by replicating what is clearly a criminal justice apparatus and labeling it a "civil justice" apparatus instead.

"Civil law" ought to mean what most people think it means: use of the courts by civilians — by private parties against and among one another (i.e., lawsuits). When the government is acting as the government, the rules meant to restrain government, such as no punishment without proof beyond a reasonable doubt, ought to apply. This is not a difficult concept.

A few additional thoughts:

--Although the proposed registry might survive procedural due process challenges, there would still be the additional constitutional hurdles of: (1) vagueness (e.g., What, exactly, would be the offenses warranting designation as a "civil offender"? What, exactly, would be the standards a judge could use in declaring someone a "civil offender"? What, exactly, would be the criteria for removal from the civil registry?); and (2) discretion (e.g., How much latitude would local prosecutors have in deciding when to pursue a "civil offender" designation? Generally speaking, prosecutorial discretion is plenary — would such unchecked discretion apply to "civil offender" actions?)

--Would a private person who seeks a civil offender designation and loses then be subject to a defamation lawsuit? How would "rape shield laws" apply to civil offender hearings? Could parents file "guardian ad litem" or "best friend" actions on behalf of their children?

--The proposal was promulgated by Roman Catholic bishops, as a compromise to avoid further publicity (and liability) from their boy-rape scandals. You can just choke on the irony of that legislative pedigree.

--Another apt analogy is in the eminent domain crisis and the use/abuse of the "blight exemption" that existed even before Kelo v. New London. The Fifth Amendment too troublesome for you? Just call the intended target of your seizure "blighted" — which also does not need to be proved beyond a reasonable doubt or by a jury — and, presto, no constitutional restriction.

Bottom line: The concept of a "civil registry" is just the latest step in a foreseeable progression toward ubiquitous punishment without guilt, confinement without guilt, forfeiture without guilt, seizure without guilt, searches without guilt, surveillance without guilt, etc.

And there is no reason to think that it won't get worse before it gets better.

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More thoughts from Conservative UAW Guy, Hammer of Truth, CrimProf Blog, ConLaw Geek. See also this related post from Sentencing Law & Policy.