I just heard an interview on public radio this morning with a woman arguing that we shouldn’t treat the Boston Marathon bomber as an enemy combatant, because that would be deciding that there was a class of U.S. citizens who committed crimes so heinous that they could be punished in extralegal ways. We wouldn’t, she said, want that.
We already have that. It’s called SORNA. There are 750,000 Americans, about 85% or more of whom are single-time, non-violent, low-risk offenders, who are denied due process and subject to decades or a lifetime of increasing extralegal punishments because they committed an offense that, in their jurisdiction, was classified as a sex offense.
Michigan, right now, is considering a bill that would make it illegal for sex offenders to “loiter” within 1000 feet of a day care center. (Sex offenders in Michigan are already barred from “loitering” within 1000 feet of a school.) On the surface, I can imagine people saying, “Great idea!” What would those child-molesting monsters be doing near a day care center, anyway, except looking for kids to molest? It is, of course, not nearly that simple.
“Loitering” is not clearly defined. It could mean going to a grocery store, hanging out at a friend’s house, attending a church service. And, the restriction applies to anybody whose crime was against a minor–a person under 18–and not restricted to those who committed offenses against a day-care-aged child.
So what does this mean in practice? In practice, it means that a man who, at 24, pled guilty to having sex with a willing 14 year old and is thus required to be on the sex offender registry for 25 years–no exceptions, no means of appeal–not only has to have his face plastered on a list of state-defined monsters for two and a half decades, but can be arrested for hanging out at a friend’s house who lives a few blocks away from a day care center that neither man even knows is there. It means that, at 44, twenty years after his offense, having never committed another crime of any kind and living as a productive, responsible citizen, after having served his criminal sentence, this man could be arrested for attending a church service at a church that is located too close to a day care center (on a Sunday, when that center isn’t even open). He could be thrown in prison for a year for this violation.
It also means that this man can conceivable be subject to more restrictions and more limitations 20 years after he committed is crime–after two decades as a law-abiding productive citizen–than he was two years after he committed it. The nature of SORNA is such that, in many states, the farther in time a sex offender gets from his offense, the more extralegal consequences that offense will carry. Ten years ago, in MI, a sex offender could not be arrested for going grocery shopping 800 feet from a day care center; it’s possible that, next year, the same man could be arrested for doing just that. The fact that he has committed no crimes and posed no danger in the ensuing decade, and that his offense was non-violent and/or victimless, does not matter. Sex offenders are denied due process and the most basic of all legal principles, protection from ex post facto punishment.
This is not right. In MI, we’re “lucky”: these “safe school zone” laws at least have provisions so that sex offenders can drop off and pick up their own children from school. In other states, there is no such provision, and a person can be arrested for driving their child to school. In Illinois, where the age of consent is 17, a man who at 25 had sex with a 16-year-old girlfriend could, at 35, be arrested for dropping his child off for his first day of kindergarten.
We already have a class of enemy combatants, of people who we have decided should be subject to endless and increasing extralegal punishments, which change at the whim of the legislature. They are registered sex offenders. The vast majority of them are single-time offenders who committed non-violent statutory or victimless offenses. And the left, which is screaming with outrage over a single man who is responsible for killing three people and gravely injuring dozens and dozens more, being treated as an enemy combatant*, has been not just silent but too often supportive of policies that have put 750,000 thousand citizens–most of whom committed non-violent or victimless offenses–into a category subject to the same lack of protections and extralegal punishments as enemy combatants.
* FTR, I do not want to see Tsarnaev treated as an enemy combatant. I just find it hard to get too upset over the denial of due process and basic constitutional protections in one truly egregious case of extreme violence when nearly a million citizens are subject to the same treatment without anybody caring.