14th Amendment Equal Protection and Due Process

What is the state’s reasoning for the need for sex offenders to register and the community be notified of their existence in the community? Primarily the state has said that sex offenders have a high possibility of re-offending, meaning that they have low impulse control or in simple terms that they are mentally ill and cannot control themselves and are thereby a danger to the community. The high re-offense rate that is cited as the rationale for the laws has been proven time and again to not exist except in the minds of the self-righteous advocates who do not see the victims that they are creating, and the professional organization and lobbyists who are only in it for the money. These looters of society fail to recognize that their actions are taking away the constitutional rights of all Americans, in order to satisfy their own personal hate and greed.

Even the mentally ill have more rights than sex offenders. Before a mentally ill person can be committed they must have their day in court because of the stigmatizing effect of being called a mentally ill person. They have constitutionally protected rights under due process, the determination whether a person is dangerous beyond reasonable doubt must focus on his or her condition at the time of the commitment hearing. A person’s actions and statements which occurred prior to the commitment hearing are probative as to his present mental condition, but mere recitation of past acts in the absence of a showing that such clearly forms a foundation for a prediction of future dangerousness cannot serve as a basis for finding that one is a mentally ill person who is dangerous to himself or others.

In the case of a person at liberty in the community who has proposed to be involuntary committed it is imperative that the need for his confinement be demonstrated by clear and convincing evidence of a real and present danger which he poses to himself or to others. Moreover, it is essential that the evidence which forms the basis of the decision to deprive a citizen of his liberty be more concrete. More and more reliable than the mere expectation or probability that the person will engage in dangerous behavior in the future further the federal courts have provided that no person should be committed or recommitted unless there is a finding of recent over acts of the individual evidencing danger to himself or others and that the necessity for commitment or re-commitment must be proved by evidence which is clear, unequivocal and convincing allows the need for re-commitment to be established by the evidence providing some factual basis to support the need for re-commitment.

And finally the courts have said that conclusions based on conjecture as to whether an appellate poses a danger to others are insufficient. Further more the United States Supreme Court has stated “none of our decisions hold that a conviction for a crime entitles the state not only to confine the convicted person but also to determine that that person has a mental illness … such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of a crime”. While a criminal conviction and sentence of imprisonment extinguish an individuals right to freedom from confinement for the term of his sentence, they do not authorize the state to classify him as mentally ill.

If sex offenders have a mental deficiency or have a mental illness then they are entitled to due process before having their names placed on a public list or having to register. If we do not then what is the rational basis for the law? Quite obviously there is NOT a high reoffend rate that proponents of the registry have lied about to legislative and judicial branches of the government, either for their own personal gain or for revenge.

Another point must be made that all sex offenders fall into the classification of felons and felons are a group or classification. The question is, are sex offenders being treated the same as all other felons, do other felons have to register or have the community notified of their presence after they have completed their sentence, are they being denied state and government services, are other felons restricted where they can live, work and recreate? The courts have found that a distinction among members of the class of offenders is irrational regardless of the importance of public safety consideration underlying the regulations or relevance of prior convictions simply discerning any regulatory reason, however plausible, will not serve to satisfy the rational basis requirement of equal protection; relevant inquiry more properly focuses on whether the means utilized to carry out the regulatory purpose substantially furthers that end. And the regulation will be considered vague and overbroad if it gives no consideration to the nature, circumstances and seriousness of the crime, the time elapsed since the conviction or the degree of the misdemeanants rehabilitation. In so far as regulations discriminating irrationally among classes of ex-offenders violate the equal protection clause of the 14th amendment and will not stand.

We must realize that we are not talking about sex offenses here, we are talking about only the possibility of re-offense. The US Supreme Court has stated,” Mere negative attitudes or fear, of the unsubstantiated by factors which are properly cognizable in a statute are not a permissible basis for treating a group different than others it is plain that the electorarate as a whole whether it be by referendum or otherwise could not order a city action to violate the equal protection clause and the city may not avoid the strictures of that clause by deferring to the wishes or objections of some fraction of the body politic, private bias may be outside the reach of the law but the law cannot directly or indirectly give them effect or to put it the way that the United States Supreme Court said in LAWRENCE V. TEXAS (02-102) 539 U.S. 558 (2003)” We have consistently held, however, that some objectives, such as “a bare … desire to harm a politically unpopular group,” are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446—447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to “ ‘discriminate against hippies.’ ” 413 U.S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535—538. In Eisenstadt v. Baird, 405 U.S. 438, 447—455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences–like fraternity houses and apartment buildings–did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that “impos[ed] a broad and undifferentiated disability on a single named group”–specifically, homosexuals. 517 U.S., at 632.

Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Id., at 633. Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id., at 634.

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

In closing, we cannot help but make this observation, with the mountain of evidence showing that there is no high re-offense rate for people involved in sex crimes and that over 99.97% of all new sex crimes are not committed by registered citizens. Further that the original legislation was based on lies, fabrications and myths. Not to mention the obvious violations of these legislative acts have against both state and federal constitutions. Constitutions that were set in place to protect individual rights against the overpowering control of the government that is why, when the majority passes a law that discriminates against a minority group, That law is unconstitutional. Why is it then that legislators continue to add new laws further compounding the damage to registered citizens and their families, unless of course, those legislators have no concern for the Constitution and individual rights of the common citizen that they have sworn to protect. 

Robert Tronge