ethics news & views: Double punishment and constitutional rights

May 01, 2002

Double punishment and constitutional rights

Generally, the United States court system is set up so that once a person has been convicted of a crime, they serve the sentence appointed to them by the judge. Once they complete that sentence, they are released back into the community. Society hopes that these people are rehabilitated, that their time in prison serves as deterrence from committing future crimes, and they become law-abiding citizens who never return to the penitentiary. Unfortunately, this is rarely the case. The US has a high rate of recidivism.

Each year thousands of released prisoners return to jail for committing the same crime or a similar offense. Some prisoners persist in or are unable to control deviant behavior. They attribute their deviance to a "mental abnormality" or a "personality disorder." They insist that their deviance is uncontrollable and once released, they will commit a crime again. Many of these offenders are pedophiles and other predators of small children. Many of them have stated that they cannot control their urges and will repeatedly harm children. Knowing that these people are likely to offend again, what should America do with those people labeled "sexually dangerous?" Should they remain in prison after they have completed their prison term or should they register with the state so that the community knows their criminal background?

According to the US Constitution, it is unlawful to punish a person twice for the same crime (double jeopardy), and it is unlawful to apply a new punitive measure to a crime already consummated (ex post facto). Once a person has completed their prison sentence, the law says they are free to return to society. Detaining sexually deviant people after they have completed a prison sentence appears to be a violation of double jeopardy and ex post facto. Since the detention does not begin until after criminal confinement for a crime, it appears that the person is being punished twice. But are the constitutional rights of a person that preys on children more important than protecting children from sexual violence and pedophilia?

Various people argue that detaining a sexually dangerous person at the conclusion of the their sentence is based on a mental abnormality or a personality disorder rather than criminal intent and is therefore not unconstitutional. According to the 1994 Sexually Violent Predator Act of Kansas, sexually dangerous people would not remain in prison after their sentence; they would be placed in a facility similar to a state mental institution. Since most experts agree that "sexually dangerous" persons cannot be treated, their detention would not be deterrence from future crimes. If the purpose of the law is to guard the rights of its citizens, the detaining sexually dangerous people would aid in the protection of the weakest citizens, children.

After much controversial debate about what should be done about sexually violent criminals, Bill Clinton signed into law in 1994 the Federal Violent Crime Control and Law Enforcement Act. The act requires released sex offenders and those who commit crimes against children to register with the local police and notify the authorities of any change of address. This act—commonly referred to as "Megan's Law"—has also forced society to address the constitutional rights of prisoners versus the rights of children.

Proponents of Megan's Law argue that forcing criminals to register with the state is a violation of the Eighth Amendment because registration is cruel and unusual punishment. Released offenders argue that they have paid their debt to society and have done all that the penal system requires of them. Any additional sanctions are cruel and unusual and a violation of both the Eighth Amendment and ex post facto. They also argue that Megan's Law leads to vigilantism and is a violation of the right to privacy under the Fifth Amendment's due process clause. Megan's law could also create a false sense of security that may actually expose children to risk, as community knowledge will not prevent offenders from offending.

Advocates of Megan's Law disagree. They argue that the purpose of registration is to give an advantage to law enforcement officials in protecting children, rather to to burden the offender with additional punishment. The fact that law enforcement officials are instructed in certain instances to notify the community of the presence of the offender does not in itself create any additional punitive burden on the offender. They believe that since the US Constitution does not explicitly grant a right to privacy, community notification should pass even the strictest scrutiny and survive any challenge on privacy grounds.

There is not a simple solution to the question of what should be done about sexually dangerous people. If they are detained, then their constitutional rights are violated, but if they are released, society is no longer protecting the rights of children. Society is now faced with the decision of whose rights are ultimately more important. If laws are for the protection of citizens, which citizens deserve more protection, children or offenders?

Although the rights in the Constitution were designed to protect all the citizens of this country, I do not think that the forefathers intended for the rights of offenders to jeopardize the rights of children. Society recognizes that offenders should not have certain rights while they are incarcerated, and I think this should be extended to when they are released. The legal system need to be more flexible and recognize that there exceptions to every rule, and sometimes offenders need to have their sentence extended or adjusted. It is unfortunate that people with sexual abnormalities should need to be subjected to a different set of rules, but I think it is better to detain that one person than to subject a large number of children to sexual violence.

The damage that sexual predators do to small children is irrevocable. These children will be haunted by sexual abuse their whole lives. I think the judicial system needs to take that into account as they make decisions about what should be done about sexual predators.

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Nicola Rochester is a rising Senior in the College who is majoring in Religion and Sociology. She was born in St. Elizabeth, Jamaica and currently resides in East Point, Georgia. She is actively involved in Emory Big Brothers, Big Sisters, has worked in the juvenile courts, and, this summer, she will return to Jamaica (with funds she raised) to help renovate a school.

This article is a companion to a presentation given in the course "Ethics In Action," taught by C. Melissa Snarr.

[ Posted by Nicola Rochester at May 1, 2002 07:35 AM |