Monday, August 24, 2015

PA Supreme Court moves away from unproven sex offender data

In "Frightening and High: The Supreme Court's Crucial Mistake about sex Crime Statistics," Ira Mark Ellman and Tara Ellman write about how last year the Pennsylvania Supreme Court held that treating everyone convicted of a sex offense as a likely re-offender, when many are not, violates the constitutional guarantees of Due Process.
In J.B. it considered changes to the Pennsylvania registry law that automatically placed juveniles on the offender registry for 25 years if they committed a rape or "aggravated indecent assault" when over 14. The rationale for the registry law was the legislative finding that "Sexual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest."
The court objected that the affected juveniles were effectively subject to an "irrebutable presumption" that they posed a high risk of re-offense even though the presumption is in fact "not universally true". The effect of registration was one key to the court’s holding that this misclassification has constitutional significance. The plaintiffs had argued that registration "impedes a child's pathway to a normal productive life through continuously reinforcing the unlikely supposition that the youth has ‘a high risk of committing additional sexual offenses’," creating "difficulty obtaining housing, employment, and schooling” as well as “depression”.

Imposing these burdens on the plaintiffs unconstitutionally denied them Due Process, the court concluded, because individual offenders were allowed no meaningful opportunity to show the presumption of high risk was factually wrong in their case. Because good individualized measures of the likelihood of re-offending are available, the state has no need to employ, and thus endorse, global stereotypes that registered sex offenders are particularly dangerous, when these stereotypes have no basis in fact. Registration requirements “premised upon the presumption that all sexual offenders pose a high risk of recidivating…impinge upon juvenile offenders' fundamental right to reputation as protected under the Pennsylvania Constitution.”

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