The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter and Amy E. Beverlin
Volume 63, Issue 4, 1071-1134
More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.
This Article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes—what this Article dubs super-registration schemes—are not. Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations.
Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this Article is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.