Wisconsin Supreme Court: Sex Offender Registries Needn’t Be Limited to Sex Offenders

Monday, December 27th, 2010

The Legal Watchdog blog looks at a terrible decision from the Wisconsin Supreme Court, in which it upheld an order for a 17-year-old to register as as sex offender, even though he committed no sex crime. The youth forced another 17-year-old to accompany him to collect a debt. This was enough to convict him of falsely imprisoning a minor, which the Wisconsin legislature has defined as a sex crime.

Scott Greenfield comments:

Of critical importance is that the court did not hold that the purpose of the sex offender registry is in any way directly related to sex, but rather “protecting the public and assisting law enforcement.”  That pretty much covers everything in the world, except releasing Brett Favre when he still had life in his arm.

By decoupling sex from the sex offender registry, there’s no rational end to where legislatures can go.  It’s invariably in the interest of protecting the public and, my personal favorite concern, assisting law enforcement to keep tabs on every person ever convicted of anything, anywhere, any time.  It’s like an “easy button” for law enforcement, and seriously, wouldn’t that make cops’ lives easier?

Wisconsin isn’t the first state to tag people with the sex offender label for crimes unrelated to sex. See the story of Fitzroy Barnaby.

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28 Responses to “Wisconsin Supreme Court: Sex Offender Registries Needn’t Be Limited to Sex Offenders”

  1. #1 |  Cynical in CA | 

    I hear Best Buy is rolling out telescreens for 2011.

    “It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself–anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face…; was itself a punishable offense. There was even a word for it in Newspeak: facecrime…” — George Orwell, 1984

  2. #2 |  Cornellian | 

    Mission creep from a weapon that was only going to be used against Bad Guys ™? Color me shocked!

  3. #3 |  Mike Leatherwood | 

    Time to break out the scarlett letters.

  4. #4 |  Yizmo Gizmo | 

    “which it upheld an order for a 17-year-old to register as as sex offender, even though he committed no sex crime.”

    Details, schmetails. Some people get so wrapped up in technicalities
    and definitions, both of which are purely pre-911 conceptualities.

  5. #5 |  Mattocracy | 

    Hopefully this doesn’t go the US Supreme Court. They’ll only rule in a manner that will make this even worse.

    Just another continuation of the war on minors, the last group of Americans to have no rights.

  6. #6 |  Marty | 

    if those kids weren’t criminals before, they will be now. this is a sure-fire way to drive people under ground. since there’s not as many illegal aliens (due to the economy), there should be plenty of room for them in one of those edge of town trailer parks…

  7. #7 |  Joey Maloney | 

    I encourage further developments in this vein. The more mission creep, the sooner the sex offender registries will become useless and the sooner the public will cease to take them seriously. I hope.

    Radley, did you know that Tennessee has a “meth offender registry” to go with its SOR?

  8. #8 |  Joshgeek | 

    As an ashamed resident of the State of Wisconsin, I already knew our judiciary was a bit crooked. Now it’s obvious that they’re downright dysfunctional. They check very little, mostly rubber stamping whatever the pols/lawyers ask for. If only the new Republicans in charge in Madison were truly conservative, they wouldn’t stand for such reckless abuse of policy. Alas, they’re all “(their special version of) Law and Order” enforcement cheerleaders raking in the dough off police/correction labor unions, and to hell with the rest cuz they’re all criminals anyway! This is downright disgusting.

  9. #9 |  DarkEFang | 

    @Joey Maloney

    “I encourage further developments in this vein. The more mission creep, the sooner the sex offender registries will become useless and the sooner the public will cease to take them seriously. I hope.

    Radley, did you know that Tennessee has a “meth offender registry” to go with its SOR?”

    I’m pretty sure that Tennessee is the state which famously includes public urinators in its sex offender registry.

  10. #10 |  Dave Krueger | 

    Sex crimes and protecting children are always used to crack traditional and protected rights. There is no such thing as being too harsh on sexual predators, so the public mindlessly supports these draconian devices (the crueler, the better). But, like a hole in a dam, eventually the entire barrier breaks down until no one even remembers there was a time without criminal registries.

    And it’s not just sex offender registries. Civil commitment is being widely used as an end-around to keep sex offenders incarcerated indefinitely after they’ve completed their sentence. Once upon a time, it took a criminal trial to imprison someone, but civil commitment is much easier, is closed to public scrutiny, and basically rests on the assumption that a person can be locked up for a crime he might commit in the future.

    Brace yourself because in the American justice system where precedence is everything, thanks to civil commitment, the concept of an open-ended incarceration will become common for more than just sex crimes.

  11. #11 |  Salt | 

    What say all those who scoff at slippery slope arguments?

    The chickens are only beginning to come home to roost.

  12. #12 |  random guy | 

    Whats great is if you point out these cases to the pro-SOR people they universally go “thats terrible, of course he doesn’t deserve to be on the list”. But try to get them to make the connection between the sensationalism of sex crimes (which are statistically very small risks for children today) inevitably leads to this kind of unnecessary punishment and their all apologetic for the system.

    What is it like 2% of the SOR is child molesters? A lot of the others are listed as rape or sexual assault, which anyone who reads this blog knows includes 16 year-olds caught in the back of the car with 15 year old partners. But 20 years later the registry still reads “unlawful sex with a minor.”

    I’m surprised the whole practice hasn’t been found unconstitutional even for the legitimately guilty. We can brand someone so that they are ostracized by society long after their sentence is up, publicly post their personal information to make them easy victims for revenge crime and harassment, and if they violate any number of state or local laws about where they are and aren’t allowed to be they get thrown back in prison for nothing. Yet many still claim its not a cruel and unusual punishment. It’s all about pushing that fear of the outsider, compounding the suffering of the leper just because you can. This is a modern day lottery, you don’t get stoned to death, just forbidden from ever leading a normal fulfilling life.

  13. #13 |  Bloodstar » Blog Archive » Lunchtime Lazy Link blogging | 

    [...] Offenders list isn’t just for sex offenders anymore. Sometimes I despair for [...]

  14. #14 |  John | 

    The Illinois Criminal Justice Information Authority Vol 4. No. 7 Dated DEC 2005. The Class 4 felonies for sex offenders has risen +2,425 per cent from 1995 to 2004. The most of all the class 4 felonies. What does that tell you about Illinois’s laws. How many were actually sex offenders that commited a crime where sex was involved? Illinois is just as bad as Wisconsin if not more worse. Case in point
    “He grabbed girl’s arm — now he’s a sex offender”
    by Walter Olson on July 3, 2005
    The judge agreed that 28-year-old Fitzroy Barnaby of Evanston, Ill. probably didn’t have any sexual intention when he grabbed a 14-year-old girl’s arm to chastise her (he says) for walking in front of his car. But unlawful restraint of a minor, the offense of which Barnaby was convicted, automatically qualifies as a sex offense under Illinois law. “Now, [Barnaby] will have to tell local police where he lives and won’t be able to live near a park or school.” “I don’t really see the purpose of registration in this case. I really don’t,” said Cook County judge Patrick Morse. “But I feel that I am constrained by the statute.” (Steve Patterson, Chicago Sun-Times, Jul. 1).

  15. #15 |  lunchstealer | 

    The reason that this is a crime is that children are too young to have their own agency. Which is fine – I have no theoretical problem with that (although it brings up its own slew of unintended consequences). But by the logic of the law – that minors are especially vulnerable and cannot consent to certain actions – then no minor can be sufficiently culpable to be criminally responsible for committing such a crime.

    Seriously, if a 17 year old can’t consent to sex because they are too young to fully comprehend the consequences, then they cannot consent to committing a crime. And if you can’t consent to committing a crime, then it cannot be a crime – or at least not in the try-them-as-an-adult sense.

    So it seems to me that anyone who attempts to prosecute a minor for a crime against a minor is violating the very principle that justifies the law in the first place. It’s just logically incompatible. Either they’re minors, and thus not fit to be standing trial for an adult crime, or both youths are functionally adults, and thus there is no justification for the crime. You can’t have one youth be functionally considered a minor and the other be functionally considered an adult.

    And if you take that idea to its logical conclusion, imprisoning a minor for a crime against another minor, and charging them as an adult, is falsely imprisoning a minor. Thus, the prosecutor is a sex offender.

  16. #16 |  ktc2 | 

    They are minors when it’s convenient for the state. They are adults when it’s convenient for the state. Not incompatible at all from their point of view.

  17. #17 |  Will | 

    We live in a small town (2500) and have about 20 convicted sex offenders, some are murderer/rapists others raped their own kids and others had sexual relations with children under 18.
    Yet there are many more not charged or charge’s dismissed because they are friends with the DA or other small town big wigs.
    I’m unsure why there is such a high rate of offenders in Wisconsin, could be the age of consent is 18.
    Whatever the cause they need to stick to actual rape and incest and not muck up the waters with those who take a piss outside or force a friend to come with to collect a debt.
    The registry will mean nothing as far as showing who is a real danger and who is just a dumbass who pee’d on old lady elmhorst’s bushes.

  18. #18 |  pam | 

    and then there’s the “jury of their peers” problem.

  19. #19 |  aJOHNymous | 

    BREAKING NEWS: The legal system is a farce and idiots in suits continue to fail us. Great job, Wisconsin Supreme Court. I hope you don’t break your arms whilst patting each other on the back over this latest fuck up. *Facepalm*

  20. #20 |  J.S. | 

    Ahh the good ol Barnaby case. I enjoy posting links to that one in threads talking about sex offender laws/crazy laws against men. Shocks a few when they actually see one of those “insane” cases. Others as mentioned above make excuses for how bad the offender list concept has become.

  21. #21 |  mannie | 

    The judge agreed that 28-year-old Fitzroy Barnaby of Evanston, Ill. probably didn’t have any sexual intention when he grabbed a 14-year-old girl’s arm to chastise her (he says) for walking in front of his car. But unlawful restraint of a minor, the offense of which Barnaby was convicted, automatically qualifies as a sex offense under Illinois law.

    He should have just smashed in her face with an iron pipe. He’d be free and clear by now.

    Lesson taken.

  22. #22 |  Paranoia Talking | 

    I wonder what other “making-us-safer” lists and registries they got.

  23. #23 |  random guy | 

    mannie – It’s sad that the hysteria has reached a point where violently murdering children caries less of a punishment than anything that could be construed as sexual misconduct. When something as simple as grabbing a child’s arm, for their own safety, caries this kind of punishment all bets are off.

    Its like three strike laws putting people in a situation where they would rather shoot a cop than go to jail for stealing a stereo.

  24. #24 |  Joe | 

    Expanding sex crime registries? Slippery Slope? This is like working on an A-frame metal roof with bacon grease on the soles of your shoes.

  25. #25 |  Rick H. | 

    IANAFL, but it seems to me that laws against slander ought to apply here.

  26. #26 |  albatross | 

    This is the almost inevitable consequence of having a list of potential bad guys. The list expands far past any possible usefulness. See all the terrorism watchlists for other examples.

  27. #27 |  Brian | 

    I think the public would be better protected with a registry for all the employees of local, state, and federal governments. When do we get a database for them, listing their work and home addresses and a photo for easy identification?

  28. #28 |  Nick | 

    The court’s ruling was correct. They ruled that the statue was enforced as the legislature wrote it. The legislature specifically included unlawful detainment of a minor as an offense that would get you put on the list. They said the list is not specifically for sex offenders only, and naming it as such doesn’t mean it can’t include other people.

    The court ultimately ruled that legislation is assumed to be constitutional, and since the man was arguing that the law was applied in an arbitrary manner, the validity of the legislation was not being tested- merely whether it was applied as written.

    So ultimately, the legislature is at fault here.

    People who kidnap or imprison people unlawfully should possibly be warned about somehow, but when it includes somebody who grabbed somebody else’s arm for ten seconds to yell at them, it’s going way beyond what the legislature intended. Of course they never seem to think about feature creep when “protecting the public”.

    This is another example of legislation the state was forced to enact in order to receive federal funding. All 50 states have a sex offender registry, and 41 of them have basically the same criteria.

    What REALLY sucks is this guy’s housing options are severely limited in many areas. There are quite a few cities in Wisconsin that limit where people on the list can live, some with distances of up to 2000′ from anywhere children commonly hang out. Sheboygan, for example, did not do an exhaustive study of what amount of residential area in the city would be available for people on the registry to live when their ordinance was created, but they guessed it would be less than 20%. There are pockets of land outside the city limits that people want to annex for the sole reason that people on the list are allowed to live there.

    Wisconsin’s “no guns near a school” law has the same effect with regard to carrying a firearm, which is otherwise legal to open carry in the state. A man was arrested for having his handgun on his front porch ON HIS OWN PROPERTY because his house is within 1000′ of a school- as is a large portion of residential property in a city.

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