Noteworthy (and unconstitutional?) sex offender collateral consequence
In conjunction with a recent Ohio conference on “Collateral Sanctions in Theory and Practice,” I have blogged a bit here on the array of collateral legal sanctions which flow from criminal convictions and their impact on offender reentry. (For the full story on this important issue, the folks at the Sentencing Project have the goods here.) But, thanks to Jonathan Soglin at Criminal Appeal, I see that California has come up with a noteworthy (and possibly unconstitutional) new restriction on sex offenders.
As thoroughly detailed in Jonathan’s thoughtful post here, a couple weeks ago, California’s Attorney General Bill Lockyer announced the unveiling of the Megan’s Law sex offender locator site. This site, which is quite user-friendly and provides access to information on more than 63,000 persons required to register in California as sex offenders, is itself noteworthy. But particularly catching my attention is Jonathan’s report that the California law which led to the creation of this resource (AB 488) also includes a provision making it a crime for registered sex offenders to enter the site. Here’s the text of Cal. Penal Code § 290.46(i), which I am inclined to call a web-surfing prohibition:
(i) Any person who is required to register [as a sex offender] who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
Jonathan’s post details some of the illogic and unfairness of this web-surfing prohibition, and I share his instinct that there may be constitutional problems as well as policy concerns with barring sex offenders from accessing a website which provides information about them.
On this interesting constitutional issue, I would especially like to hear from legal mavens like Profs Orin Kerr or Eugene Volokh at The Volokh Consiparacy or Prof. Larry Lessig. My first question is whether this law breaks new ground simply by making it a crime for certain people to access a publically-available website. (I am way outside my field of expertise here, since all I know about computer crimes is that you can get a pretty serious sentence for hacking.) I can imagine a number of ways to challenge such a law, but I suspect there is already some relevant cyber-jurisprudence to inform this issue.
At a broader policy level, both the sex offender website and this questionable California law reflects the pariah status of sex offenders in society today. I have spotlighted this issue and related sentencing matters in a few prior posts: