Research On The Constitutional Review Of U.S. Sex Offender Registration

Inclined protection towards minors is one of the significant national ethics,and protecting minors from sexual abuse is a key element of it.Since the establishment of sex offender registration in the middle of last century,U.S.has hitherto established a nationwide sex offender registration and notification system as a powerful measure to prevent sex crimes.In judicial aspect,the U.S.Supreme Court has discussed the constitutionality of it in many cases,for example,whether it constitutes an unreasonable restriction on the rights of sex offenders,and whether it violates constitutional principles such as "ex post facto law","double jeopardy" and "due process".If China would like to prevent sex crime through this system,it must clarify the constitutionality issue first.The experience of American legislation and justice in this area can provide valuable reference for our country.This dissertation adopts research method of empirical analysis,takes the constitutional review cases about sex offender registration made by the U.S.Supreme Court since 2003 as study subject,combining with the legislative process and the academic perspective,analyzes the formation and evolution of the judicial opinion of the U.S.Supreme Court,and makes a comprehensively comment on the judicial opinion.First,the dissertation introduces the origin,legislative overview and constitutional disputes of the U.S.sex offender registration,makes the social background and history of this system clear.Second,divided relevant cases of the U.S.Supreme Court into four stage: confirmation of constitutionality,the adjustment of legislation on the premise of constitutionality,judicial concession before free speech and the prospect of rethinking excessive registration.Lastly,make a summative evaluation on the process and characteristics of constitutional review,and analyze the experience that China can learn from it.At first,the U.S.Supreme Court emphasized the “sex offender exception” view that sex offenders are particularly dangerous,The dissertation believes that although sex offender registration has also brought many constitutional issues including federalism and separation of powers,the U.S.Supreme Court's review has always centered on the core issue of " whether the rights of sex offenders are reasonably balanced against the public interest".The value orientation of the U.S.Supreme Court is directly reflected in the constitutional review standards it adopts.At first,the U.S.Supreme Court emphasized the “Sex Offender Exceptionalism”,viewed that sex offenders are particularly dangerous,following the judicial restraint stance of "constitutional presumption",adopted rational basis review.In Smith and CDPS,U.S.Supreme Court rejected “Ex Post Facto Law” and “Procedural Due Process” challenge against sex offender registration,defined the nature and function of registration from three perspectives: “minor and indirect”,“civil regulatory” and “pure procedural”,denied that registration limited the rights of sex offenders,gave the legislature the freedom to use registration,provided the constitutional support for the retroactive application of registration,and transferred the task of risk assessment for sex offenders from the legislature to the public,laid down the view on the sex offender registration of the U.S.Supreme Court.Later,the development of sex offender registration legislation and the increase in registration obligations brought new judicial challenges.On the one hand,the U.S.Supreme Court adjusted the legislative flaws of military offenders and international travel on the constitutional basis laid down by precedent.On the other hand,while insisting on the retrospective application of registration,the U.S.Supreme Court also faced the practical obstacles to retrospective application and made some adjustments based on legislation,and began to pay attention to rights of sex offenders,taking the certainty of legislation as the premise of retroactive application.But overall,the U.S.Supreme Court had kept silent on the constitutionality of registration.Hereafter,The development of the Internet has put forward new requirements for the prevention of sex crimes.In Packingham,U.S.Supreme Court formally recognized the rights for sex offenders to seek to reform and to pursue lawful and rewarding lives including free speech.No longer stopped at "constitutional presumption",but applied intermediate scrutiny standard which was stricter,requiring that a law should be must be “narrowly tailored” to serve a significant governmental interest.Packingham means that legislation will face much more strict scrutiny and "Sex Offender Exceptionalism" will fade when it comes to the constitutional rights of sex offenders,and also provides a new standard for balancing the rights of sex offenders against the public interest.Lastly,as the excessive registration problem becomes more serious,Snyder adopted rational basis scrutiny and was more active in seeking the rational connection between registration and preventing sex crime,noting that the sex offender registration had exceeded the legislature's intent,requiring that the damage brought by registration should be less than the benefits it can bring,and reflected on the effectiveness of sex offender registration to prevent sex crimes.This case also broke the "civil management" deadlock since Smith,formally examined the issue of excessive registration,broke the one-sided in favor of government outcomes of constitutional lawsuit in the field of sex offender registration.Influenced by the shift in the focus of censorship from "constitutional support for sex offender registration" to "restraint excessive legislation on sex offender registration " and the growing status of the rights of sex offenders,The U.S.Supreme Court's scrutiny standard for sex offender registration has gone through four stages: rational basis scrutiny,silence of constitutional review,intermediate scrutiny of constitutional rights,and tightening of rational basis scrutiny.The scrutiny standard is becoming stricter,judicial positions are becoming more rational,sexual offenders' rights and public interest tend to balance.If our country wants to learn from the U.S.experience to establish sex offender registration,we need to focus on three key points: First,we must pay attention to the uniformity of the registration legislation and the legitimacy of the legislative body;second,we must pay attention to the protection of the rights of sex offenders under the registration system,especially constitutional rights and the rights of pre-offenders;third,we must provide necessary procedure in accordance with the system design.