Today, New Hampshire’s Supreme Court will hear arguments in a case that will turn on the basic constitutional principle that criminal laws cannot be retroactive, thus punishing someone for an act that was legal at the time. Nor can the punishment for a crime be changed after the fact.
Though the case concerns a sex offender, the principle applies to every crime, and fairness dictates that the court uphold the state constitution’s requirement that “retrospective laws are highly injurious, oppressive and unjust.”
The case involves a man convicted of sexually assaulting his 14-year-old stepdaughter a quarter-century ago. For purposes of disclosure, the New Hampshire Civil Liberties Union sued on his behalf, and he is being represented by William Chapman, a Concord lawyer who often represents this newspaper.
The man, now a disabled senior citizen, was convicted before a 1998 state law required that sex offenders register with authorities. That law has since been toughened roughly a dozen times. The registry, once confidential and available primarily to law enforcement, is now public.
Today, an offender’s name, address, photograph, conviction date and crime are all posted on a state website for all to see, and people on the registry are required to personally appear before local police four times per year.
The outcome could turn, as it did when the U.S. Supreme Court heard a similar case involving an Alaska sex offender registration law in 2003, on whether the court considers listing on the registry to be a punishment or regulation necessary to protect the public.
In the Alaska case, the high court deemed, in a split ruling, that registration is a regulation necessary to protect the public and thus not punitive.
In truth it was both, but since then the internet has exponentially increased the punitive effect of the registry.
Inclusion on it for life is the equivalent of the Colonial-era practice of “shaming,” which required that offenders wear a sign proclaiming their crime.
Think adulteress Hester Prynne in The Scarlet Letter.
Meanwhile, the public protection value of the registry remains doubtful. The overwhelming majority of those convicted of a sexual offense never re-offend, but it is next to impossible, once on the registry, to get off it with expert testimony or good behavior. That makes the registry so inclusive that it is of little use in alerting the public to convicts who remain dangerous.
In the Alaska Supreme Court case, then Justice David Souter voted to uphold the law out of respect for the legislative process, but he also wrote that “the fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.”
Appearance on the sex offender registry exposes those on it to humiliation, discrimination in employment and housing, threats and potential violence. It also leads to homelessness, which, because it makes offenders harder to track, is counterproductive.
For years, a disturbingly high number of people have been convicted of embezzling funds from their employer, town government, local sports league or nonprofit. Could the Legislature suddenly decide that the public needs to be protected from them, too, and pass a law requiring that, no matter when their offense was committed, their photograph and address should appear on a public website for all time?
- They should, to be fair! If it's "okay" to violate one groups rights, then they should do it to everybody so we are all treated equally!
We say no, that would be retroactive punishment and thus unconstitutional. The same principle holds in the case being argued today.