Supreme Court sends mixed signals with Packingham decision

The Supreme Court clearly affirmed the First Amendment rights of registered sex offenders with its recent decision in Packingham v. North Carolina. Whether the decision signals the court’s willingness to look at other restrictions imposed on registered citizens remains less clear, writes Bidish Sarma in a post on the American Constitution Society blog.

On the one hand, Sarma writes that Justice Kennedy’s majority decision seems to indicate a broader concern with registration schemes across the country.

In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”

Individuals who have seen or experienced the devastation wrought by society’s moral panic about sex offenders must feel a small measure of hope now that the Court has given a nod to the “troubling” restrictions so many endure.

Yet the court also seems to continue to accept the discredited assumption of high sex offender recidivism rates.

The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’ McKunesupra, at 33 (plurality opinion) . . . .” 

The court could soon take up a couple more cases that would shed more light on the future of sex offender registries and the rights of registered citizens. Stay tuned.

Read the full article at the American Constitution Society website.


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