Not a Monster: Why We Should Rethink Sex Offender Registrants

“Each of us is more than the worse thing we’ve ever done,” Bryan Stevenson declares in an inspiring 2012 TED Talk on the state of injustice in America. Current criminal legal reforms, like the #closerikers campaign, lead us to believe that even people who commit violent crimes are not criminal; they just behaved criminally.  The Office of Justice Programs (OJP) echoed those sentiments in “dispensing with useless and demeaning labels that freeze people in a single moment of time.” After all, people who commit criminal acts are our friends, families, neighbors, coworkers, and classmates; well, except sex offender registrants. Assuredly they’re all monsters, right?

The number of people registered for a sexual offense has ballooned to over 850,000, and included on the list are rapists, people with HIV, public urinators, teenage romances, and everyone in between. Many of them will be registered for life and saddled with myriad housing, employment, travel, and parenthood restrictions. The OJP, in their missive to amend their language usage, expresses a desire for people to have a chance to rebuild their lives. For people with sex offense convictions, however, the politics of outrage and fear stymies those desires for second chances.

Sensationalized media rhetoric leads us to believe all registrants are pedophiles or “baby rapers,” bound to commit another sexually-based offense against children, which is categorically untrue. Every day the American public is inundated with headlines that someone, somewhere, committed a sex crime; or, another former offender is released back into the community, rearrested, failed to register, or some other dramatized story. This trite rhetoric adds fuel to their fear and ignorance, and ignites costly and ineffective policies.

We can all agree that what we want most from the criminal legal system is an assurance of public safety. To be fair, that’s an impossible standard as society will never be perfectly safe. The best we can do is mitigate risk. Legislation designed to track and monitor sex offender registrants might be fine if there was any evidence the sex offender registry enhanced public safety.

Years of research has determined that people with sex offense convictions have low rates of sexual recidivism and the punishment for these crimes does not prevent sexual violence. Yet, even with research returning the same results year after year, there has been a noticeable strengthening of the registry punishment paradigm. Arguing for lenient statutes to accurately reflect the evidence-supported realities of sex crimes is seemingly about as appealing as swallowing bleach.

To be clear, I am not advocating for the normalization of sexual offenses. Violent and coercive sexual assault is never appropriate. What I am saying is this public perception of people with a sex offense conviction conjures up a Frankenstein’s monster, a miscellany of advertised fears. This perception is woefully inaccurate and we need a greater understanding of not only what it takes to be labeled a “sex offender,” but also the deleterious effects of the registry.

We are rarely afforded a chance to see the human behind the “sex offender” label, before being convinced of their monstrousness. The narratives of people convicted of sex offenses are all unique, but we fail to realize it and often rely on media hyperbole and hysterics to form our opinion. If we were to take cues from several examples of our unjust criminal legal system, we would realize that we should rethink how we approach sexual offenses.

Take Zachery Anderson’s case in 2014 for example. Then 19, he captured national attention for engaging in consensual sex with a 14-year old Michigan girl who led Zachery to believe she was 17. Zach was convicted of a sex offense in spite of the pleas for leniency from the Michigan girl and her mother. The judge in Zach’s case, Dennis Wiley, was incensed by Zach’s participation in today’s online “hook-up” culture. Zach “went online, to use a fisherman’s expression, trolling for women, to meet and have sex with. That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever.” Judge Wiley sentenced Zach to 25 years of registration in both Michigan and Indiana, but intense public backlash eventually led to the sentence being vacated.

Nick Rhoades is HIV+ and, in 2008, he engaged in consensual and protected anal sex. For years, his antiviral cocktail suppressed his HIV virus and made transmission virtually impossible. While Nick didn’t transmit the virus to his sexual partner, it wasn’t enough to stop an Iowa court from convicting him for criminal transmission of HIV. Failing to disclose his HIV status to a sexual partner netted Nick a sentence of 25 years in jail and lifetime sex offender registration. While Nick ended up serving some time, public outcry eventually contributed to Nick’s release from both incarceration and sex offender registration requirements.

Josh Gravens was registered as a sexual offender for touching his 8-year-old sister’s vagina when he was 12-years-old. His mother reached out to a counselor for advice and was told she was legally required to report Josh’s behavior. The state got involved when his family declined to press charges, and Josh was convicted. He was released from Texas’ juvenile justice system three and a half years later and returned to high school. After a local paper included Josh in an expose on sex offenders, “helost friends; people started ignoring or avoiding him, including teachers.” The social isolation eventually escalated to death threats, and for a long time after high school, Josh struggled. Eventually, Josh was removed from the registry and he became a staunch reform advocate, but even a decade and a half later it’s still a continual stream of instability. His long-term partner, “feels the long-lasting effects have been somewhat glossed over.” As she says, “it has defined his entire adult life to date, and unfortunately has been one housing, employment, and/or personal crisis after another.” All of this needless and constant hardship for one instance of adolescent curiosity.

These men, along with other registrants, and their loved ones are also subject to a dizzying array of collateral consequences due to their status as registrants. Family disruptions are common due to residency restrictions preventing registrants from residing near places children congregate. Children of registrants are also frequently harassed, isolated, and bullied at school. Juvenile registrants are less likely to “attach to social institutions such as schools and church,” thereby increasing their chances of entering into the school-to-prison pipeline, and more likely to commit suicide.

Adult registrants report difficulties in finding and maintaining suitable employment and housing, and experience public shaming. These obstacles to community reintegration actually decreases public safety, because it sometimes, but not always, leads to a higher likelihood of re-offending. Frank Lindsay is a California registrant, who in 1979, at age 26, was convicted of lewd and lascivious acts with a minor under the age of 14. He served his time, including an offense-free probation, and built a family and a business. When Megan’s Law was enacted in 1996, the public notification provision published Frank’s information and he lost his business. His attempts to amend the wrongs he committed almost two decades earlier were undone overnight. In 2010, after 35 years of living without committing another crime, Frank was attacked in his home by a vigilante with a hammer. Frank luckily survived, but too often collateral consequences can prove fatal for not only registrants, but also their loved ones.


At 17-years-old, Justin Fawcett had a consensual sexual relationship with a 14-year-old female classmate. This schoolmate documented her sexual encounters in her diary, which was later used to charge Justin and four others with felony criminal sexual conduct. Justin pled guilty to a lesser charge
of seduction to avoid sex offender registration, and attempted to rebuild his life following his conviction. A year later, in spite of a plea deal, an appellate court ruling requiring registration for any sex offense with a minor forced Justin to register as a sexual offender. Justin committed suicide to avoid facing a lifetime of public humiliation, and in a unique twist, posthumously remained on Michigan’s registry for seven years.

In an instance of vigilante justice, Jeremy and Christine Moody targeted Charles Parker for his status as a sex offender registrant. The Moody’s parked outside Charles and his wife Gretchen’s South Carolina home, knocked on the door, and feigned car troubles. They shot Gretchen once in the chest, stabbed her multiple times and slit her throat; Charles was shot twice and also suffered from stab wounds. Both did not survive the attack.

The logical conclusion from these narratives is that we shouldn’t be so quick to judge, even as we’re consistently inundated with emotional rhetoric. This rhetoric causes us to harbor biases, and snap judgments don’t provide enough time to separate out the truth. “Sex offender” appears to reflexively mean child rapist, but, as these narratives demonstrate, the “sex offender” label also encompasses people criminalized for their HIV status and juveniles. It’s a one-size-fits-all label with indiscriminate collateral consequences that impact us all. Perhaps we should be open to listening to narratives before we lash out with knee-jerk reactions. Our reactions thus far have led to social ostracism, unemployment, and unstable housing; all of which increase the likelihood of re-offending. If we keep pushing registrants outside the margins, we cannot guarantee safer communities.

I am not asking you to seek out the nearest registrant, hug them, and be their best friend. All I ask is for some critical questioning and a little consideration for the narratives behind the label, especially if you have experienced marginalization. Queers, women, people of color, people with criminal records, and low-income people all understand the feeling of being “Other-ed.” We mustn’t forget that.

Queers, especially, know what it’s like to be labeled deviant and worthless, and have our lives scrutinized and policed. Not too long ago, we were criminalized for our sexual desires, and, in many
respects, we still are. It’s important to note many registrants are queer, and it’s largely a function of how America polices our sexuality and gender expression.

Not just queers, but all people, need to understand the ways in which the use and abuse of sex laws in our country has created an underclass of social pariahs. Clearly this is an uncomfortable topic fraught with emotional complications, but our singular approach has failed us. We cast a wide net, invariably catching juveniles who made dumb mistakes and people that screwed up; locked them up, and then threw away the key.

Registrants are rarely decarcerated; their physical bars are merely traded for digital ones. We cannot expect to fix the problem of sexual offending unless we work to prevent sexual abuse, and not just punish it. Registrants are systematically excluded from reform efforts, but perhaps we should rethink our sympathies. That, however, will require us to “start from the fundamental truth that everyone born in a human body is endowed with all human qualities and also with inalienable human rights—and move forward from there.”


Whether we can move this issue forward depends on if you ration your sympathies. We are all in this together as humans and as a community; understanding sex offender registrants shouldn’t be an us versus them scenario. Collectively, we can arrive at a solution that promotes public safety, strengthens communities, protects civil liberties, and restores dignity to harmed parties and harm doers, but we need to first set aside our blind outrage so we can listen.

Sex Offender 2003 Landmark 6-3 Decision Smith Vs Doe Is It Ripe For Challenge

 By Seeking Justice, alas

Looking at the Smith decision, there's still three on the court that dissented against the framework of Sex Offender Registration Act in it's construction agreeing of it's penal nature. Ginsburg in dissent as follows: "Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals".
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.



The newly appointed Justice Gorsuch, who is a Defense Attorney, may bring the court to a balance to overturn the key punishment components of the Sex Offender registration;

Is it time and ripe to challenge the landmark decision that paved the way to the ever increasing license to abate the constitution freedoms of those subject to Sex Offender Registration. Could Justice Thomas be persuaded to side with the challenge agreeing that this legislation is punitive after his dissent noted in UNITED STATES v. KEBODEAUX , decided 2013


THOMAS, J., dissenting in Kebodeaux Cite as: 570 U. S. ____ (2013)

Stating "Finally, the Court asserts that the Wetterling Act is reasonable because it “took state interests into account by, for the most part, requiring released federal offenders to register in accordance with state law,” and its requirements are “reasonably narrow and precise.” Ante, at 10. But the degree to which the Wetterling Act or SORNA accommodates State interests and intrudes on the lives of individuals subject to registration is irrelevant because the Supremacy Clause makes federal law supreme.  See Art. VI, cl. 2.  “As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States.” Gregory v. Ashcroft, 501 U. S. 452460 (1991). The fact that the Wetterling Act and SORNA may be “narrow” and “[take] state interests into account,” ante, at 10, is “not a matter of constitutional necessity, but an act of legislative grace.” Comstock, 560 U. S., at 178 (THOMAS, J., dissenting).  These factors have no place in deciding whether a law “Execut[es]” an enumerated power.

Continuing he adds; "The Court not only ignores the limitations on Congress’ power set forth in the Constitution, but it also ignores the limits that it marked just three years ago in Comstock. In that case, this Court held that Congress has power under the Necessary and Proper Clause to enact 18 U. S. C. §4248, which authorizes the Federal Government to civilly commit “sexually dangerous persons” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. Comstock, 560 U. S., at 142.  The Court rebuffed the assertion that it was conferring a general police power on Congress by asserting that §4248 was “limited to individuals already ‘in the custody of the’ Federal Government.” Id., at 148. The Solicitor General even conceded at oral argument that “the Federal Government would not have . . . the power to commit a person who . . . has been released from prison and whose period of supervised release is also completed” because “at that point the State police power over a person has been fully reestablished.” Tr. of Oral Arg. in United States v. Comstock O. T. 2009, No. 08–1224, p. 9.  The Court and the Government today abandon even that meager restriction, which itself lies far beyond the constitutional limits.  Kebodeaux was no longer in federal custody when Congress enacted SORNA, yet the Court disregards the fact that, even under Comstock, release from prison and supervised release terminates any hold the Federal Government might otherwise have and “fully reestablishe[d]” the State’s police power over that individual.- Concluded-

Smith vs Doe action was brought under 42 U.S. C. §1983, seeking to declare the Act void as to them under, inter alia, the Ex Post Facto Clause, U.S. Const., Art. I, §10, cl. 1. The District Court granted petitioners summary judgment. The Ninth Circuit disagreed in relevant part, holding that, because its effects were punitive, the Act violates the Ex Post Facto Clause.

Us Supreme Court Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4—18.

    (a) The determinative question is whether the legislature meant to establish “civil proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361. If the intention was to impose punishment, that ends the inquiry.

If, however, the intention was to enact a regulatory scheme that is civil and non- punitive, the Court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil. E.g., ibid. Because the Court ordinarily defers to the legislature’s stated intent, id., at 361, only the clearest proof will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. See, e.g., ibid. Pp. 4—5.

The characteristics of the Act (civil remedy)  overtime has become increasingly punitive and in the courts opinion, such purpose and or effect left an open door to override the intent from the civil remedy into a criminal penalty. By the nature of the increasingly overbroad state and municipal infringements of the rights of sex offenders and the multiple split decisions in various jurisdictions concerning the constitutional infringements by these additional restrictions. However, the open door leans toward the court's intervention or override legislatures stated intent of the providing proof that intent has become a criminal penalty.

This will take skilled constitutionalist such as Norman Pattis and others to draft the challenge of  the increased infringements of our rights to demonstrate that the intent has become punitive with criminal penalty in the framework of the intent of the legislation not just in the penalty of failure to  register.

Failure To Update A Registration Does Not Violate SORNA

SORNA: International Registration.

Nichols v. United States,136 G. S. Ct. ___ (Apr. 4, 2016).

Title 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided. Two men lived on opposite sides of the Missouri River in the Kansas City Metropolitan area, one in Missouri within the Eighth Circuit, the other in Kansas within the Tenth Circuit.

Both men were convicted of sex offenses before the enactment of the Sex Offender Registration and Notification Act (“SORNA'”), but were required to register under SORNA. Both men traveled from their homes to the Kansas City International Airport, flew to the same foreign country—Manila—to reside, and thereafter did not update their registrations in the jurisdictions they had left.

On these facts, the Eighth Circuit ruled in United States v. Lunsford, 725 F.3d 859 (8th Cir.2013), that the failure to update a registration does not violate SORNA. The Tenth Circuit came to the opposite conclusion in Nichols’ case.

The Supreme Court reversed Nichols’ conviction in a unanimous decision authored by Justice Alito. The decision reasons that “[a] person who moves from Leavenworth to Manila no longer ‘resides’ (present tense) in Kansas,” thus SORNA “did not require Nichols to update his registration in Kansas once he no longer resided there.” 

Sex Crime Tiers under Federal Law

Like most states, South Carolina has not substantially implemented the federal Sex Offender Registration and Notification Act (SORNA).

(Only 17 states have.) Nevertheless, some portions of the federal law wind up impacting sex offenders in South Carolina. As a matter of existing state law in North Carolina our neighboring state, a judge may not grant a petition for removal from the sex offender registry if doing so would violate the “federal Jacob Wetterling Act, as amended, and any other standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” G.S. 14-208.12A(a1)(2).With that requirement in place, federal rules regarding minimum registration period effectively trump the state-law regime allowing a non-lifetime registrant to petition for removal 10 years after the date of initial county registration. The minimum registration periods under federal law are 15 years for so-called “Tier I” offenses (reducible to 10 years in certain circumstances), 25 years for “Tier II” offenses, and life for “Tier III” offenses.

That longwinded introduction brings me to the real purpose of today’s post. To apply the state law referencing federal law correctly, you need to know the tier into which the registrant’s reportable offense would fall. Federal law defines the tiers mostly by reference to federal crimes. In today’s post I will summarize the federal laws and regulations regarding tiering, including all of the relevant definitions of qualifying acts.


Tier I. Tier I is a residual category that includes sex offenders other than tier II and tier III sex offenders. 42 U.S.C. § 16911(2). Thus, the only way to identify tier I offenses is to know which offenses fall into tiers II and III.

Tier II. Tier II offenses (defined in 42 U.S.C. § 16911(3)) are described in U.S. Department of Justice (USDOJ) guidelines on SORNA as (1) offenses involving the use of minors in prostitution; (2) offenses against minors involving sexual contact—i.e., any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing; and (3) offenses involving the production or distribution (but not the mere possession) of child pornography. 73 Fed. Reg. 38030, 38053–54.
More specifically, Tier II offenses are those other than Tier III offenses (described below) that are punishable by imprisonment for more than one year, and fall into one of the following three categories (A, B, or C):
A. Are comparable to or more severe than the following offenses, when committed against a minor (or an attempt or conspiracy to commit them):

1. Sex trafficking as defined in 18 U.S.C. § 1591;
2. Coercion and enticement under 18 U.S.C. § 2422(b);
3. Transportation with intent to engage in criminal sexual activity under 18 U.S.C. § 2423(a); or
4. Abusive sexual contact under 18 U.S.C. § 2244. Abusive sexual contact generally requires, among other things, that the defendant engage in or cause “sexual contact” with or by another person, defined in 18 U.S.C. § 2246(3)as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

B. That involve:

1. Use of a minor in a sexual performance;
2. Solicitation of a minor to practice prostitution; or
3. Production or distribution of child pornography.

C. That occur after the offender becomes a tier I sex offender.

Tier III. Tier III offenses (defined in 42 U.S.C. § 16911(4)) are those that are punishable by imprisonment for more than 1 year and fall into one of the following three categories (A, B, or C).

A. Are comparable to or more severe than the following offenses (or an attempt or conspiracy to commit them):

1. Aggravated sexual abuse under 18 U.S.C. § 2241or sexual abuse under 18 U.S.C. § 2242. “Sexual abuse” crimes generally require, among other things, the commission of a “sexual act,” defined in 18 U.S.C. § 2246 as contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the anus; penetration of the anal or genital opening of another by a hand, finger, or any object; or direct touching, not through the clothing, of the genitalia of a person under 16.
2. Abusive sexual contact under 18 U.S.C. § 2244 (described above in the tier II offense definition) when committed against a minor under 13 years old.

B. Involve kidnapping of a minor (unless committed by a parent or guardian).

C. That occur after the offender becomes a tier II sex offender.

If the a person’s registration offense does not match up with any of the descriptions set out above, then South Carolina would be permitted under SORNA to treat it as a tier I offense.

However, South Carolina has adopted its own unconstitutional tier system allowing for lifetime registration for all offenses including those of tier I that should be removed for registry requirements after the term defined under SORNA. Some offenses under South Carolina Code Annotated Section 23-3-430 (D), allow upon conviction of an offense not specifically identified, the presiding judge may order registration if good cause is shown by the solicitor.

LAWSUIT CONTENDS NORTH CAROLINA FACEBOOK LAW GOES TO FAR

Lester Packingham’s Facebook post is headed for the US Supreme Court 

The Man Arrested for Praising Jesus

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system. An audio version of Case in Point is broadcast with The Takeaway, a public radio show from WNYC, Public Radio International, The New York Times, and WGBH-Boston Public Radio.
   

Lester Gerard Packingham was having a really good day back on April 27, 2010. The North Carolina man had just learned that a traffic ticket against him had been dismissed, so he logged onto his Facebook account and gleefully told the world: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent… Praise be to GOD, WOW! Thanks Jesus.”

At the same time, Brian Schnee, a police officer in Durham, was doing his job, working to identify registered sex offenders in the state who were accessing sites like Facebook. He came across Packingham’s post and recognized the face but not the name on the page, “J.r. Gerrard.” Because Schnee knew Packingham to be a sex offender the officer got a search warrant for Packingham’s residence, where he found proof that Packingham was, indeed, “J.r. Gerrard” and that he had, indeed, opened the Facebook account.

Packingham’s glee soon ended. He was indicted and ultimately convicted of violating a state law that makes it a felony for any person on the state’s sex offender registry to “access” any “commercial social networking Website” that he or she “knows” does not restrict membership to adults. The sweeping measure, enacted in 2008, applies to approximately 20,000 North Carolina residents who have been placed on the offender registry for one reason or another. It has been used in more than 1,000 prosecutions like the one against Packingham.

But none of those other cases generated a successful U.S. Supreme Court appeal. For six years now Packingham has fought the charges, in and out of court, on the simple premise that it should not be a crime to express online joy (on Facebook or any other site) about the demise of a parking ticket. And prosecutors and state attorneys have been equally adamant since 2010 that the law that ensnared Packingham is a valid exercise of state power to protect the Internet’s most vulnerable surfers from great harm.

Next week, the justices in Washington will hear oral arguments in the Packingham case. The primary dispute centers around Packingham’s free speech rights: does the First Amendment protect his ability to be on Facebook as a sex offender? But just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent. As Packingham’s lawyers put it: “[E]arly First Amendment cases establish basic principles restricting criminal punishment to persons proved to have acted with both ‘an evil doing hand’ and ‘an evil meaning mind’” and Packingham is guilty of neither.

This legal point, offered in the broader context of the First Amendment challenge, explains why this case has generated interest from many of the same constituencies that have been arguing, loudly recently, that America has become “overcriminalized” by laws like the North Carolina law, which are triggered by what would otherwise be an innocent act. To civil libertarians, Packingham has been unfairly convicted of a crime without having the requisite mens rea—criminal intent. Under North Carolina’s “access” law, the Cato Institute and the ACLU ask in their friend-of-the-court brief in the case, how exactly “does a person ‘know’ whether a website ‘permits’ participation by minors?”

North Carolina’s answer? The statute is what is known as a “strict liability” law, a category typically seen in the realm of corporate regulations on matters like workplace safety and environmental protection. The law presumes that you know that your act is criminal; the online “access” itself, without more, is your crime and your act of being on Facebook is itself evidence of your intent to commit that crime. This is the essence not just of the North Carolina law but of similar laws barring sex offenders in other states.

To the defense bar, meanwhile, Packingham’s new punishment is a “hidden sentence,” a “collateral consequence” beyond the original sentence that violates his free speech and association rights under the First Amendment* because he intended no harm*. To technology geeks, the case is about the importance of the Internet in our modern age. To state officials, however, in North Carolina and beyond, Packingham’s plight is simply the price of keeping children safe from sexual predators. The registry would lose much of its power, they contend, if unrehabilitated sex offenders were able to freely trawl social media sites trying to solicit and entice children.

North Carolina’s sex offender registration law was enacted in 1995, just as the Internet was gearing up. Like similar laws around the nation it is based on the premise that “sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment”; that is, that there is something inherent in the mind of a sexual offender that makes him more likely to succumb to temptation. If you are on the registry, there are severe restrictions on where you can live and work and socialize—all in the name of protecting children.

With the spread of social media, lawmakers suddenly realized that those on the sex offender registry could, theoretically, prey on victims without leaving the comfort of their homes. First, lawmakers considered increasing existing penalties for the crime of “exploiting a minor or soliciting a minor by computer.” But they scrapped that approach and laid down broader limits on computer use—the law that caught up with Packingham.

The purpose of the measure, state attorneys have told the Supreme Court in their briefs, was to respond to the “special challenges to society as it attempts to protect its most vulnerable members” from the perils of the Internet. Social media “does not merely allow predators to communicate more easily with children whom they stalk. It also allows them to gain intimate information about children’s social lives, families, hobbies, and hangouts.”

But there is no evidence that Packingham was or is a predator trawling through Facebook stalking children. He was on the sex offender registry in the first place because of a 2002 conviction for “taking indecent liberties” with a 13-year-old girl (he was 21 at the time). The judge gave Packingham the lowest possible sentence and then immediately suspended it. Instead of prison time, Packingham did 24 months of supervised probation. In 2004, Packingham completed his probation without any problems. He stayed out of trouble after his probation, too. Until that traffic ticket was dismissed in 2010.

Packingham first tried to get the case dismissed by arguing that the law violated his constitutional right to free expression. The trial judge rejected that argument. The “access” law fairly balanced the “activities of sex offenders” with the “protection of minors,” the judge ruled before allowing the case to go to trial. Prosecutors did not allege that he had done anything wrong on Facebook. They didn’t have to. Because Facebook was a site that children could access, Packingham was found guilty. Once again, a judge cut him break. There was no prison sentence.

Packingham nevertheless appealed his conviction and won. The law was too broad, a panel of judges on the North Carolina Court of Appeals concluded, because it could be interpreted to bar Packingham from performing even a Google search or “purchasing items on Amazon.” Then it was the prosecution’s turn to appeal. And they won. The North Carolina Supreme Court restored Packingham’s conviction. The state’s law did not infringe Packingham’s First Amendment-protected speech, the court’s majority concluded, it just restricted his conduct, the act of “accessing” the Internet.

To the bipartisan coalition that supports “mens rea” reform, the folks who believe that no one should be convicted of a crime without evidence of evil intent, Lester Packingham is an unlikely hero: a guy who committed a crime merely by praising Jesus. The Cato Institute told the justices in Washington that “North Carolina’s far-reaching criminalization of speech, information-gathering, and expression is unconstitutional for at least three reasons,” one of which is that the statute is “hopelessly vague.” (Another reason, also touching on the notion of “intent,” is that the statute is “overbroad”; that it encompasses websites the surfing of which is clearly constitutional),

To the National Association of Criminal Defense Lawyers, the North Carolina law is “one of a growing number of federal and state laws that effectively impose criminal punishments outside the normal, individualized criminal sentencing process, categorically stripping citizens of constitutional rights with little or no effort to tailor the restraints they mandate to the objectives they purport to serve.” To the Electronic Frontier Foundation, the North Carolina statute impermissibly “bars” citizens like Packingham “from the collective communicative life of the nation” as seen through online social interactions.

To prosecutors and government organizations, however, the burden of these laws on men like Packingham is small compared to the benefit gained in public safety. They say in their briefs filed in support of North Carolina that the lawmakers who enacted the law and the prosecutors and judges who are enforcing it are simply “seeking a practical solution to a practical problem” posed by social media sites frequented by children. “Today’s sex offenders have access to a far greater number of potential victims than those in the pre-Internet days when offenders were generally limited to in-person contact,” is the essence of the argument.

And to victims rights groups, and advocates seeing to combat the sexual exploitation of children, the North Carolina law is a targeted and lawful approach to a particularly dangerous situation created by the intersection of curious teenagers and new technologies. There is no good reason, this argument posits, why those already on a sex offender registry should not be required to stay away from certain social media sites renown for encouraging people to connect and share personal details about their lives.

Intent aside, the case likely will turn on the legal standard the justices select to evaluate the statute. If they see the law as curtailing Packingham’s First Amendment rights in a direct way they will review the law using a heightened level of scrutiny and it might not survive such a review. If they see the law as curtailing Packingham’s First Amendment rights in an indirect way, by blocking his access rather than his expression or association, then the law could survive. Either way, the future of Internet “access” laws for sex offenders won’t likely be the same. Which is why tens of thousands of men in North Carolina, and countless more across the nation, are waiting to see how thankful they ought to be for Jesus and Facebook.

What percentage of convicted sex offenders will go on to commit a second sex crime?

Take a guess: If you named any figure higher than 5 percent, social science says you're wrong. But don't worry, the U.S. Supreme Court doesn't know the right answer, either. More than 100 court decisions around the country, including from the high court, have cited sex offenders' supposedly "frightening and high" threat of reoffense in justifying the increasingly sadistic punishments the country inflicts upon them.

David Feige's documentary examines how this class of untouchables came about. Driving the narrative is the startling figure of Ron Book, whose daughter was horrifically abused by the family's female nanny for six years.

The film opens on the father's pain, still raw decades after the fact, as seen in his eyes, both distraught and deranged.

Vengeance dictates sex offender laws

There's a seemingly intimate scene of Book getting ready in the morning, where we see him shaving, with his shirt off, his middle-aged body exposed to the camera. What's jarring is that he's standing in a gorgeous granite bathroom. We see shots of his case of expensive watches, then of Book getting dressed in walk-in closet that puts any Men's Wearhouse to shame. It's a portrait not of an aggrieved father willing himself out of bed each day, but of a general preparing for battle.

Book is one of the most powerful lobbyists in Florida, and since his daughter's abuse, he's been on a mission to keep kids safe from sexual predators. That's how he describes it. As the film shows, the swaths of legislation that Book has pushed have done more to make sex offenders' lives miserable than to actually protect children.

"Sentence them to waterboarding every day, throw the keys away," Book says at one point. "I used to be a liberal Democrat, and then a crime hit my family, and I realized just how conservative I was."

The quote encapsulates our national attitude toward sex offenders, one that relegates them to a monstrous, subhuman class. We see this in neighborhood "predator patrols," in state-sanctioned sex offender tent colonies, and in the eagerness with which politicians of all stripes invent new scarlet letters with which to brand offenders. We see it, too, in the three registered sex offenders whose stories are interwoven throughout the film, themselves victims of a society that would rather they disappear and die than offer treatment, rehabilitation or, God forbid, compassion.

Anyone familiar with these arguments will quickly realize that Untouchable isn't treading new ground. Still, the filmmakers exhibit considerable deftness in tracing a character-driven historical arc that helps makes sense of this deeply discomfiting subject.
Screens at MCT Sun., Feb. 19, at noon.