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Requirements of the Registry Are Punitive
From: JOHN DOE v. STATE OF NEW HAMPSHIRE Argued: May 8, 2014 Opinion Issued: February 12, 2015
The Supreme Court noted that shame or stigma was not the objective of these laws, as it was for the historical punishment of shaming, and that historical shaming entailed more than just disseminating information. Smith, 538 U.S. at 98. The act, however, by including the petitioner on a list of registered sex offenders, does more than merely disseminate information. If the registry were truly just about making criminal records more easily available to the public, then all such records would be available. Instead, only certain offenders are listed on the website. This “[s]election makes a statement.” Id. at 109 (Souter, J., concurring). The website may not contain any derogatory words or explicit warnings, but the mere fact that certain individuals are on the list signals that they are worthy of such recognition. The act also makes the information readily and instantly accessible to anyone who wants it, which is not often the case for other public information and records.
There is evidence that the petitioner has experienced shame and stigma because of the registry. For example, he is too embarrassed to inform his doctors about his status as a registered sex offender, and his son’s neighbors, by posting flyers about him, were successful in their efforts to prevent him from moving into their neighborhood. It might be that these effects are “merely a necessary consequence of the Act’s intent to protect the public from harm,” Kammerer, 322 P.3d at 836, but the effects themselves are negative and real, and are the focus of our inquiry at this step of the analysis.
Although the act’s requirements do not exactly replicate the historical form of shaming, this factor inquires only whether the act is analogous to a historical punishment, not whether it is an exact replica. We must recognize that our world has changed. The purpose of colonial shaming was to punish the offender by holding the offender out to the community as someone to be shunned or ridiculed. However, shaming also served to notify the community of the crime committed and the individual who committed it, so that members of the community could protect themselves. The act does the equivalent in our modern times. Our communities have grown, and in many ways, the internet is our town square. Placing offenders’ pictures and information online serves to notify the community, but also holds them out for others to shame or shun. Other courts have found that the resemblance to shaming gives sex offender registration statutes a punitive effect under this factor. Doe, 189 P.3d at 1012; Doe v. Dept. of Pub. Safety & Corr. Servs., 62 A.3d at 140; see also Smith, 538 U.S. at 116 (Ginsburg, J., dissenting). Because the act bears at least some resemblance to shaming, we find that this factor weighs in favor of finding a punitive effect.
Senator Foster recognized the impact of the registry on offenders:
What does that mean, when you’re put in the registry? Well, in very material ways, your life’s ruined; it’s inalterably impacted. People who are on the registry are pariahs in our community and they’re shunned. They’re not able to go and do what most of us can do, like go to school events, volunteers [sic] in school, help out with their kids, and so forth. It’s a very serious matter to be on the registry.http://www.courts.state.nh.us/supreme/opinions/2015/2015012doe.pdf
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