Logan on Card Carrying Sex Offenders

Wayne A. Logan (Florida State University - College of Law) has posted Card Carrying Sex Offenders on SSRN. Here is the abstract:

 

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect. Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War. This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.

Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering. At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.” The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.” The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers. The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination. As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance. The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.