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Lawsuits test crackdown on sex criminals

Friday, April 18, 2008
Stateline Article

By John Gramlich, Staff Writer

A death-penalty case argued before the U.S. Supreme Court this week marks the latest constitutional challenge to an ongoing, nationwide crackdown on sex criminals.

From California to North Carolina, a flood of litigation has accompanied an expansion in the scope and severity of penalties imposed by local, state and federal lawmakers on those who commit sex crimes.

Penalties for molesters and other sex criminals have toughened considerably in recent years and now include execution in at least five states, chemical castration in eight states and the use of technology to monitor offenders' every move in more than half the states.

In some instances, punitive measures are limited only by lawmakers' imaginations. In Louisiana, for example, a proposal being debated this legislative session would forbid offenders from wearing masks on Halloween or Mardi Gras. In New Jersey, a new state law prevents molesters and others from surfing the Internet unless it is for work-related purposes; Florida and Nevada have similar laws.

The recent legal challenges take aim at laws that sex criminals say violate constitutional guarantees, including privacy, due process and protection from cruel and unusual punishment. Supporters of the laws say they are necessary to protect children from predators who are capable of committing brutal crimes.

One such brutal crime, the rape of a young child, is at the center of a closely watched case from Louisiana argued April 16 at the nation's highest court. The justices heard an appeal from a 44-year-old inmate who claims it is unconstitutionally cruel and unusual for the state to execute him for raping his then-8-year-old stepdaughter a decade ago.

Lawyers for the inmate, Patrick Kennedy, say the death penalty for child rapists is cruel and unusual, in part because only four other states (Montana, Oklahoma, South Carolina and Texas) allow it, while similar laws in Florida and Georgia may be invalid after court or legislative action. They stress that only Louisiana actually has sentenced child rapists to death, and only in two cases, and that the Supreme Court already has struck down the death penalty for those who rape adults.

"Evolving standards of decency," however, should allow for the execution of such criminals, lawyers for Louisiana counter, noting that child rapists are universally acknowledged as being among the worst of the worst.

Attorneys general from nine states (Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, Texas and Washington) filed a brief supporting Louisiana's side in the case. Missouri Gov. Matt Blunt (R), who has pushed for the death penalty for child rapists, joined legislators from his state in a separate brief supporting Louisiana.

Despite the attention drawn by the Louisiana case, the ultimate punishment is far from the only punishment that sex criminals are challenging as excessive.

In Georgia and Ohio, sex criminals have successfully challenged residency restrictions that forbid them from living within 1,000 feet of schools or other common gathering places for children. California's highest court also is considering whether to strike down zoning laws that could make huge swaths of the state off-limits to offenders.

In Missouri's Supreme Court, a convicted sex offender is challenging aspects of the state's practice of "civil confinement," which has allowed him to be held indefinitely in a treatment program for a crime he committed in 1983 and for which he finished serving time years ago. More than 20 states allow civil confinement after it was upheld by the U.S. Supreme Court in separate decisions in 1997 and 2002.

The 4th U.S. Circuit Court of Appeals, meanwhile, is preparing to hear arguments on the constitutionality of the Adam Walsh Child Protection and Safety Act, a wide-reaching federal law that requires all states to dramatically toughen penalties for sex criminals by July of next year, or risk losing funding from a congressional grant program. A trial judge ruled against parts of the law last year.

A broad spectrum of critics, including civil-rights organizations such as the American Civil Liberties Union and Human Rights Watch, law enforcers, prosecuting attorneys and even some victims' assistance group, has criticized some of the recent local, state and federal laws aimed at sex criminals.

Many say the laws are more about political opportunism than public safety. Elected officials recognize that they can appeal to voters by piling up penalties on a widely detested criminal population that has few advocates willing to stand up for its rights, critics say.

"It's still an easy, no-lose-politically situation," said Corey Rayburn Yung, a professor at John Marshall Law School in Chicago and author of a blog, Sex Crimes, that reports on trends in sex-offender legislation.

But politicians who support the measures say they are simply reflecting the will of their constituents, who want to crack down on sex criminals.

"Most people who talked with me about it said they would have been rougher (on sex criminals)," Georgia state Rep. Amos Amerson (R) said of the state's residency restrictions.

Amerson recently voted to revise and reinstate restrictions that the Georgia Supreme Court ruled unconstitutional last November. The revisions now are on the desk of Gov. Sonny Perdue (R), who has until May 15 to sign them into law. Opponents have predicted a new round of litigation if Perdue approves the restrictions.

In Iowa, where a law preventing sex offenders from living within 2,000 feet of schools and other gathering places is considered among the toughest in the nation, the state supreme court twice has upheld the statute.

But a coalition of groups, including sheriffs and county attorneys, has lobbied the Legislature to repeal the measure, claiming it wastes public resources trying to track molesters who are essentially made homeless because of the rules. In a sign of the political difficulty of that lobbying effort, however, opponents of the residency restrictions have decided to wait until next year to ask legislators to reconsider.

"This is an election year, and so we have consciously backed off it," said Corwin Ritchie, executive director of the Iowa County Attorneys Association. Ritchie said the issue was "held hostage to politics."

Meanwhile, the federal Adam Walsh Act is likely to face more litigation than any other statute because of its breadth. The law requires some juvenile offenders as young as 14 to be included in online registries and retroactively applies new registration requirements to offenders who have been out of prison for years.

Sarah Tofte, a Human Rights Watch researcher who has studied sex-offender laws and advocates for a comprehensive approach that focuses on treatment, said she thinks it is unlikely that lawmakers will back away from tough new laws, despite the mounting legal challenges.

She noted that the federal Second Chance Act signed by President Bush this month, which eases convicts' re-entry into society by focusing on rehabilitation, does not apply to sex offenders, who are viewed by the public and by legislators as immutable, lifelong criminals.

"I think it's going to be quite a while until we let sex offenders be treated like other ex-offenders," Tofte said.

Posted with permission from the author; this article originally appeared on

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