Blanket Exclusions, Animus, and the False Policies They Promote

Abstract

Saying something is true does not make it so. And saying it louder does not make it truer. But such is the legislative posture behind modern day sex offense registration laws that punish those who commit sex crimes because of entrenched myths that overstate the laws’ positive impact on public safety and exaggerate recidivism rates of offenders. And it is not only registration schemes themselves that have been scaffold-ed by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes. And in its most recent chapter, the narrative has been formalized into blanket exclusions – or what this article calls “all except for” provisions – that have inserted into a myriad of criminal justice reform efforts without much notoriety.

The effect? Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants. Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous blanket exclusions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.

This article examines the moral panic and false data used to buttress blanket exclusion provisions – their inflated importance obvious. It concludes that these measures, which are un-tethered to public safety concerns, and only supported by governmental and community animus, violate fourteenth amendment protections.

Keywords: Sex Offender, Registration, Animus, Criminal Justice Reform, Substantive Due Process, Taylor, Exclusions

JEL Classification: K1, K10, K14, K30