Ruling: State Can Dump Non-Sex Offenders Into Registry

By David Kravets
Wired
Mar. 20, 2010

Georgia’s Supreme Court is upholding the government’s right to put non-sex offenders on the state’s sex-offender registry, highlighting a little-noticed (but growing) nationwide practice.

Atlanta criminal defense attorney Ann Marie Fitz estimated that perhaps thousands of convicts convicted of non-sexual crimes have been placed in sex-offender databases. Fitz represents a convict who was charged with false imprisonment when he was 18 for briefly detaining a 17-year-old girl during a soured drug deal. He unsuccessfully challenged his mandatory, lifelong sex-offender listing to the Georgia Supreme Court, which ruled against him Monday.

Under the Adam Walsh Child Protection and Safety Act of 2007, the states are required to have statutes demanding sex-offender registration for those convicted of kidnapping or falsely imprisoning minors. The Georgia court ruled that the plain meaning of “sex offender” was overridden by the state’s law.

“Rainer’s belief that the term ’sexual offender’ may only apply to offenders who commit sexual offenses against minors does not change the fact that the definition provided in the statute, and not the definition that Rainer wishes to impose upon the statute, controls,” the court’s majority said.

Two judges in dissent wrote that, because registration limits where offenders may live, work and congregate, it “is not a requirement that should be imposed cavalierly.”

Fitz’s client, Jake Rainer, is waiting to see if Georgia changes its law before asking the U.S. Supreme Court to review his registration requirement. Fitz argues that that being forced to register as a sex offender, without having committed a sex crime, is cruel and unusual punishment.

In addition to the obvious stigma associated with deviant behavior, listed offenders cannot live near schools or work with children. Additionally, their photos are often publicly available online, they’re banned from social networking sites, and they must get permission to travel across state lines.

The nation’s high court has upheld sex-offender registration statutes as applied to sex offenders, but hasn’t heard a case involving convicts who have not committed sex offenses.

The decision by Georgia’s high court (.pdf) follows high-profile snafus in which the authorities failed to keep tabs on registered sex deviants who committed heinous crimes while on post-prison supervision.

A registered sex offender held Jaycee Dugard captive and raped her for years in California unbeknownst to a parole officer who visited the property where the ongoing crimes were taking place. The authorities also regularly checked the home of Ohio registered sex offender Anthony Sowell. They eventually found 10 buried bodies there only after a woman accused him of rape in September.

Still, Rainer has an uphill legal battle.

Georgia’s high court said his registration “advances the state’s legitimate goal of informing the public for purposes of protecting children from those who would harm them.”

And when it comes to criminal statutes, the U.S. Supreme court is on the side of states’ rights. In 2003, for example, the justices dismissed cruel-and-unusual punishment claims brought by a California man imprisoned for life for stealing golf clubs.