Cruel and unusual punishment has no exact definition in law—a number of state constitutions describe it as punishment that’s so disproportionate to the crime committed that it shocks the conscience of a reasonable person.
Our notions of it have changed over time and vary across cultures. In essence, it’s something like Supreme Court Justice Potter Stewart’s description of hard-core pornography–he couldn’t define it, he said, but “I know it when I see it.”
A court case in Ohio offers a test of whether we think putting those convicted of any sex crime on a public sex offender registry is cruel and unusual.
As described in the Columbus Dispatch, 21-year-old Travis Blankenship was working part-time at a department store and had nearly completed his coursework for an associate’s degree at Clark State Community College in Springfield. Then he had an affair with a 15-year-old girl that both describe as consensual.
Word about the relationship got out, and Blankenship was arrested. A psychologist assessed him and concluded that he wasn’t a sex offender, didn’t require treatment, and was unlikely to commit another offense. A lower-court judge also didn’t consider him much of a threat, sentencing him in 2012 to serve 12 days of a six-month sentence for unlawful sexual conduct with a minor.
But under Ohio’s Adam Walsh Act, Blankenship was automatically declared a Tier II sex offender, which will require him to register his address, employment, and other information with the sheriff every 180 days for the next 25 years.
Blankenship is appealing, and in a case before the Ohio Supreme Court this week, his public defender argued that mandatory sex-offender registration constitutes cruel and unusual punishment when it is “grossly disproportionate” to the offender’s character and crime.
But the prosecution countered that sex-offender registration is “not shocking to any reasonable person in this state.” The prosecutor argued that Blankenship’s conduct was “typical of grooming behavior by sexual predators” (though that conclusion is contrary to that of the professional who examined Blankenship). The prosecutor also argues that registration isn’t punishment, and if it’s not, “it can’t be cruel and unusual.”
In essence, the argument comes to this, as laid out University of Cincinnatti law professor Marianna Brown Bettman:
Prosecution: Requiring 25-year registration for someone convicted of having unlawful sexual conduct with a minor when the offender is age 21 and the victim is age 15 is not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and the community’s sense of justice.
Defense: Punishing people whom the record reflects are not sex offenders by requiring them to register for decades shocks the conscience of a reasonable person.
So since both sides are appealing to the same reasonable person, I’d like to hear from you, my reasonable readers—at the end of this post is a box in which you can vote Blankenship’s appeal up or down. (By the way, one legal dictionary defines you reasonable people as those “who exercise average care, skill, and judgment in conduct.”)
But just like a baseball manager who needs scouting reports on prospects before the college draft, you should have some essential information before making your choice—background that most judges and juries don’t get—a description of what being on a public sex offender registry means day to day.
Here are some findings from independent experts about life on the registry:
Registration brings with it “multiple unwelcome impacts on registered offenders and on their families and children,” according to the California Sex Offender Management Board, a panel of law enforcement and sex offender treatment experts appointed by the California legislature. “These consequences,” says the board, “include serious obstacles to finding appropriate housing–or any housing; obstacles to finding employment; obstacles to developing positive support systems; obstacles to developing close relationships; and obstacles to reintegrating successfully into communities.” (From A Better Path to Community Safety, report of the California Sex Offender Management Board)
Many registrants are subject to residence restrictions that prohibit them from living near schools, daycares, parks, and other places where children congregate. Substantial research has shown that such restrictions have forced hundreds or thousands of offenders into homelessness. “In Indiana, 26 percent of sex offenders surveyed were unable to return to their homes after being released from prison, 37 percent were unable to live with family members, and nearly a third said that a landlord refused to rent to them or to renew a lease. In Broward County, Florida, the restrictions resulted in 97 percent of the county being off-limits to offenders—that left almost 9 percent of its sex offenders homeless.” (From Sex Offender Laws: Failed Policies, New Directions, 2013, a compilation of studies by leading criminologists specializing in sex crime policies)
Hundreds of registrants and their families have been the targets of vigilantes. In 2008, researchers surveyed nearly 600 immediate family members living with offenders. The resulting article, in a 2009 issue of the American Journal of Criminal Justice reported that 44 percent said they’d been threatened or harassed by neighbors because of their family member’s status, 27 percent that their property had been damaged, and 7 percent that they’d been physically assaulted or injured. Since 2005, at least eight sex offenders nationwide have been murdered by people who used a state registry to track their victims.
Registrants’ names often are posted in public places. Many localities actively advise all of the neighbors when those on the registry move in, regardless of whether their crime involved a child. The American Journal of Criminal Justice study reported that 30 percent of respondents said the local newspaper published the address where they lived, and 22 percent said that in their neighborhood, flyers were posted to show neighbors where their registered family member lived.
So now it’s up to you, reasonable reader—is putting Blankenship on the registry for 25 years cruel and unusual or not? Please vote! And feel free to comment, especially if neither answer captures your sentiments. (For example, you might think that Blankenship’s sentence is far too harsh but that he should be held accountable in some other way—I’m particularly interested in what you think would be an appropriate way for him to answer for his crime.)
View the results here: https://www.surveymonkey.com/results/SM-R3TBQGZD/