N.H. High Court Recognizes Punitive Effect of Registration

The New Hampshire Supreme Court, in a narrow ruling, says that lifetime registration is punitive and creates a hardship.

The court took pains to write an opinion that applies only to one individual. But it is significant that the court recognizes the punitive reality of sex-offender registration.

“We are convinced that the punitive effects clearly outweigh the regulatory intent of the act,” Justice Robert Lynn wrote for the court.

This is a breakthrough, similar to rulings in other states where courts are abandoning the convenient lie that sex-offender registration is a benign civil regulation. It is that lie that has permitted politicians to circumvent constitutional provisions against ex post facto laws.

The state and U.S. Constitutions say that it is illegal to pass a punitive law that applies after-the-fact of a criminal offense. For the sake of argument, let’s say the Legislature wants to get tough on predatory bankers. It passes a law that says predatory bankers who violate accounting laws should have their right hands chopped off. And because people hate predatory bankers, it’s a popular move. Because it’s so easy to hate predatory bankers, the Legislature labels the mutilation as simply a civil regulation, not a punishment. That means that the state is free to go out and chop off  the right hand of anyone who ever broke an accounting law. If the mutilation were labeled punishment, the state would be limited to chopping off the right hands only of those who violated an accounting law after the hand-chopping statute took effect.

Sooner or later, someone is likely to come along who says, “Hey, you know, chopping someone’s hand off really is punishment, even if you’re not calling it punishment.”

That appears to be happening now with the punishment that is sex-offender registration. We appear to be returning to sanity after decades of flat-out crazy sex-offender hysteria that has permitted politicians to ignore constitutional provisions. In Nebraska, our attorney general’s office was so bold as to simply defy court rulings in its mad pursuit of hammering sex offenders. We should not lose sight of the fact that this crazy activity has not and never will protect anyone from sexual assault.

The significance of the New Hampshire ruling is that it represents one more small step toward getting smart on crime as opposed to being outrageously and ineffectively tough on crime. Here is a story about the ruling.

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