JOHN DOE v. COLONEL GARY T. SETTLE, in his official capacity as Superintendent of the Virginia Department of State Police
No. 20-1951
United States Court of Appeals for the Fourth Circuit
January 28, 2022
PUBLISHED. Argued: September 23, 2021.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:20-cv-00190-RAJ-LRL)
Argued: September 23, 2021 Decided: January 28, 2022
Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.
ARGUED: Kenton Craig Welkener, Jr., BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Timothy P. Bosson, BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Mark R. Herring, Attorney General, Michael A. Jagels, Acting Deputy Attorney General, Holli Reeves Wood, Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitors General, Jessica Merry Samuels, Assistant Solicitor General, Kendall T. Burchard, John Marshall Fellow, OFFICE OF ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Two months after he turned 18, John Doe was caught having sex with his 14-year-old girlfriend. Given the facts of his arrest, Doe may well have been charged with “carnal knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children. But instead he was charged with and pleaded to a lower-class felony, “taking indecent liberties with children,” which only prohibits behavior like propositioning a child for sex. Doe‘s plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia law, it also led to worse treatment by Virginia‘s sex-offender registry. Both crimes generally put an offender on the highest tier of the registry for life, but there is a narrow exception to that rule. When an offender is less than 5 years older than his victim, he may be removed from the registry in time. But that mitigating exception only applies to carnal knowledge, the crime with the higher sentencing range, and not to indecent liberties. So while Doe may have felt lucky to only be charged with indecent liberties, given the potential for a lower prison sentence, that plea ended up condemning him to worse treatment on the registry. Because of that oddity, Doe will spend the rest of his life on Virginia‘s sex-offender registry with no hope for relief.
Doe—now in his 30s—sued Colonel Gary T. Settle, Superintendent of the Virginia Department of State Police, hoping to persuade a court to remove him from that registry and its burdens. Doe argues that the registry and the 5-year-gap provision violate multiple constitutional principles. In his Fourteenth Amendment equal protection claim, Doe asks us to consider why an offender convicted of having sex with a child, as Doe might have been, should be treated better than an offender convicted only of propositioning a child for sex, Doe‘s actual charge. In his Eighth Amendment
Both appeals present significant issues of fairness, but at bottom, they ask us to question the wisdom of the Virginia legislature and its sex-offender registry. That is not our place. When the Constitution is invoked, our place is to determine whether state laws comply with the specific dictates of that document. And Virginia‘s sex-offender registry complies with the Eighth and Fourteenth Amendments. So we affirm the district court‘s dismissal.
I. Background
A. Facts
When John Doe was 17 years old, he began dating a girl at his high school. She was 14. Months later, the two were caught having sex in a parked car behind the local middle school. But by then, Doe was 18 years old—18 years and 2 months, to be exact—and the girl was still 14—98 days from her 15th birthday. That is criminal under Virginia law, so Doe was arrested. Doe could have been prosecuted for a violation of “carnal knowledge of a child between thirteen and fifteen,” a Class 4 felony under
According to Doe, his attorney advised him to plead guilty to the charge, and Doe did so in 2008. He was sentenced to 3 years in prison but only served 4 months; the rest of the sentence was suspended. Doe alleges that no one mentioned the sex-offender registry to him before his plea. So only later did Doe realize he would have to register as a sex offender for the rest of his life.
B. Virginia‘s Sex-Offender Registry
To assist law enforcement and to help communities protect themselves from repeat sex offenders, Virginia created a sex-offender registry. See
The registry requires extensive information from all offenders: photographs, fingerprints, DNA samples, home address, employer information, vehicle information, and internet usage information like email addresses and other online identities.
Beyond simply providing information, other consequences flow from an offender‘s status on the registry. Tier III offenders cannot enter a school during school hours without court-ordered permission.
Not every negative consequence of having committed a sex crime is a part of the registry though. Take
For some, there is a chance to get off the registry in time. After 15 years, most Tier I offenders can petition a court to be removed from the registry.
As we have said, the offense determines an offender‘s tier on the registry, and two offenses are relevant here: “[c]arnal knowledge of a child between the ages of thirteen and fifteen years of age” under
Carnal knowledge prohibits sex with 13- and 14-year-old children.3 Indecent liberties prohibits a range of behavior with children under 15 years old that leads up to but does not include sex acts, things like exposing your genitals to a child, proposing sex to a child, or enticing a child to enter a house for sex.4 Even though there is considerable overlap between these offenses, there are significant differences. For instance, carnal knowledge can be committed by adults or minors while indecent liberties can only be committed by adults. And carnal knowledge only includes victims of 13 and 14 years old while indecent liberties includes any child under 15.
The two crimes are also treated differently by the registry. Indecent liberties is an out-and-out Tier III offense. Carnal knowledge is Tier III but only “where the perpetrator is more than five years older than the victim.”
II. Discussion
After more than a decade on the sex-offender registry, Doe argues that his Tier III classification violates the federal and Virginia constitutions. The district
A. Equal Protection Claim
“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Doe‘s equal protection claim focuses on the differential treatment created by the beneficial application of the Romeo-and-Juliet provision to offenders convicted of carnal knowledge while no Romeo-and-Juliet provision applies for those convicted of indecent liberties. So to make out an equal protection claim, Doe—having been convicted of indecent liberties—must prove that he is similarly situated to someone convicted of carnal knowledge. Then he must show that the distinction in the sex-offender registry between that crime and indecent liberties fails rational-basis review. While we assume without deciding that Doe may be similarly situated to offenders convicted of carnal knowledge, he fails to make the exceptional showing required to defeat a state law under rational-basis review.
1. Similarly Situated
Doe argues that he is similarly situated to a hypothetical person convicted of carnal knowledge whose victim was also within the Romeo-and-Juliet provision‘s 5-year window. To make out this first part of an equal protection claim, Doe must show that these two groups—those convicted of indecent liberties and those convicted of carnal knowledge—are “in all relevant respects alike.” Nordlinger, 505 U.S. at 10.
Doe‘s best argument to make this showing relies on Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 538–39 (1942).6 In Skinner, the Supreme Court held that Oklahoma‘s Habitual Criminal Sterilization Act violated the Equal Protection Clause. Id. at 536; Oklahoma Habitual Criminal Sterilization Act, 1935 Okla. Sess. Laws 94–99. That law authorized the sterilization of criminals who had been convicted of three separate felonies “involving moral turpitude.” Oklahoma Habitual Criminal Sterilization Act, § 3. Felonies “involving moral turpitude” included larceny but expressly excluded certain offenses, including embezzlement. § 24A. Skinner had been convicted of three larcenies: once for stealing chickens and twice for armed robbery. So a judgment was entered requiring sterilization. Skinner, 316 U.S. at 537. Skinner argued that there was no legitimate reason to sterilize him as a three-time larcenist but not a three-time embezzler. The Supreme Court agreed: “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense... it has made an invidious
discrimination.” Id. at 542. At the next step the Court struck down the law, finding the different treatment of similarly situated defendants unjustified. While that outcome was reached under strict scrutiny and not the rational-basis test we use here, by the nature of the two-step equal protection inquiry described above, the Court‘s opinion necessarily included a holding that the larcenist and the embezzler were similarly situated with respect to the Oklahoma sterilization law.
Virginia wants to distinguish Skinner by the fact that it applies strict scrutiny, which of course it does, but that puts the cart before the horse. The level of scrutiny is the second step in the analysis. At this first step, we only ask whether the defendant and his hypothetical counterpart are similarly situated. On that question, Skinner binds us. When a law imposes collateral consequences based on criminal convictions, two impacted offenders who are treated differently can be similarly situated if their convictions are similar enough. The only question is how similar the crimes must be.
Consider first the two crimes at issue in Skinner. Larceny and embezzlement have much in common. Larceny requires taking possession of another‘s property with the intent to steal and without consent. See Wm. L. Clark & Wm. L. Marshall, A Treatise on the Law of Crimes §§ 303, 315, at 378, 399 (3d ed. 1927); William E. Mikell, Criminal Law, 15 Modern American Law § 164, at 177 (Eugene
another‘s property. And in Oklahoma at the time, larceny and embezzlement were punished in the same manner when the same amount was taken. Skinner, 361 U.S. at 538 (citing 21 Okla. Stat. tit. 21, §§ 1462, 1705 (1942)). Whether $20 was stolen by larceny or stolen by embezzlement, the punishment was the same.
In Justice Douglas‘s words, the only real distinction between the two is “when the felonious intent arose.” Id. at 539.7 In fact, the reason we have two crimes instead of one is largely path dependent: The creation of embezzlement was to fill a loophole in the old common law definition of larceny, which required a “trespass in the taking” and let many would-be embezzlers off the hook. See LaFave, supra, § 19.6(a). For this reason, the Model Penal Code suggests consolidating larceny and embezzlement (among other crimes) into a single offense called simply “theft.” Model Penal Code § 223.1 explanatory note for Sections 223.1-223.9 (Am. L. Inst., Proposed Official Draft 1962). So when the Supreme Court looked at the “highly technical” and “close distinctions” between the crimes that are based in part on historical accident, they held that “the nature of the two crimes is intrinsically the same.” Skinner, 316 U.S. at 539–40, 542. The larcenist and the embezzler were sufficiently similarly situated with respect to the sterilization law.
Even with Skinner as our guide, it is not exactly clear how to sort distinctions that alter the very nature of a crime from distinctions that merely rearrange the furniture.
Virginia points to four distinctions that make indecent liberties and carnal knowledge different enough to escape Skinner: the acts and mental states required to commit each crime, the age of the defendants, and the age of the victims. We discuss each in turn.
To start, while the crimes certainly proscribe different acts, that is only true to an extent. Carnal knowledge is precise; it covers only the act of sex with a child, without force, and sometimes, without consent.
Next, the mental states. There are two possible differences in the mental states of these crimes: a “lascivious intent” element and a knowledge-of-age element. But again, it is not clear that either definitively splits these crimes. First, there is some unpublished Virginia caselaw that suggests that, unlike carnal knowledge, indecent liberties may require knowledge of the victim‘s age. See Detzler v. Commonwealth, No. 1779-08-4, 2010 WL 1286350, at *3 (Va. Ct. App. Apr. 6, 2010). But the better reading of how Virginia interprets its own law is that neither crime requires knowledge of the age of the victim: “[W]here sexual crimes involve actual or attempted physical contact with a minor, a defendant‘s knowledge of the victim‘s age need not be shown in order to prove the defendant‘s guilt.” Kilpatrick v. Commonwealth, 857 S.E.2d 163, 174 (Va. Ct. App. 2021); see also Rainey v. Commonwealth, 193 S.E. 501, 501–02 (Va. 1937); Va. Prac. Jury Instruction § 88:15 (“Even if the defendant did not know her actual age, for any reason at all, that is not a defense to [
For the second possible mental-state difference, the indecent liberties statute requires “lascivious intent,” but the carnal knowledge statute has no such language. That phrase “describes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.” McKeon v. Commonwealth, 175 S.E.2d 282, 284 (Va. 1970). On a first pass, it is hard to see how there is any meaningful difference between the mental states of these two crimes where one requires a desire to indulge in sex and the other requires the actual indulgence in sex. While it might gesture at a difference between normal sexual desire and something “shameful or morbid,” cf. Roth v. United States, 354 U.S. 476, 487 & n.20 (1957), carnal knowledge requires its own “shameful or morbid” act—the act of sex with a child under the age of qualified consent. Instead, “lascivious intent” might make an exception for less morally culpable cases, like the loving boyfriend. But the facts of this very case disprove that reading, since by all accounts, Doe was in a romantic relationship with his victim and was convicted of indecent liberties anyway. So again, it is hard to say that any difference in the mental states is more than “highly technical.”
Finally, the crimes involve different age requirements for both defendants and victims. Indecent liberties can only be committed by adults.
In response, Doe argues that if you view the crimes through the lens of the Romeo-and-Juliet provision, the age differences mostly disappear. For example, because indecent liberties can only be committed by those 18 or older, the 5-year-gap provision would, if extended to indecent liberties, only ever apply to 13-year-old victims at the youngest, just the same as carnal knowledge. Something similar happens with the age of the defendants.
If the provision was applied to both crimes, it is a mathematical certainty that some adults would get the benefit under both, notwithstanding that carnal knowledge can be committed by children while indecent liberties cannot. So Doe correctly points out that, once you accept the framing of the 5-year gap, we know that even if the provision was applied to both crimes, it would never apply to child-victims younger than 13 and would always benefit some adult offenders. In other words, Doe argues that because the mitigating provision narrowly focuses on victims and defendants who are close in age, the broader age differences between the crimes are no longer a “relevant respect” in which the crimes are different. See Nordlinger, 505 U.S. at 10 (emphasis added).
In total then, Doe contends that under Skinner and viewed properly through the Romeo-and-Juliet provision, indecent liberties and carnal knowledge are “intrinsically the same quality of offense“—both are Tier III sex crimes with child victims and young-adult defendants, that are nonviolent and that do not include other aggravating factors. To ratify that argument, we would need agree that none of the offered distinctions—neither separately nor in the aggregate—make the crimes intrinsically different. Further, we would need to use the Romeo-and-Juliet provision as Doe suggests, as a lens to simplify away the age distinctions between the crimes. It is not clear whether we would be justified in doing so, and even that step would not simplify away the fact that only carnal knowledge contemplates child-offenders. But in any event, we need not take that step. We can assume without deciding that Doe is similarly situated to the offender convicted of carnal knowledge because Doe‘s claim will fail at the next step.
2. Rational-Basis Review
Now we move to constitutional scrutiny, and with no suspect class or fundamental right, we apply rational-basis review. This test represents a powerful presumption of validity. Lyng v. Auto. Workers, 485 U.S. 360, 370 (1988). The showing required to overturn that presumption is steep. A challenger must show there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320 (1993). The state need not make any showing; no evidence of any kind is required; reasonable speculation is enough. FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 315 (1993). As for the justification, any conceivable reason will do. It does not matter what motivated the classification. Id. at 315. Nor is there any place in rational-basis review to question the wisdom or logic of a state‘s legislation; rough line-drawing, even “illogical” or “unscientific” line drawing, is often necessary to governing. Heller, 509 U.S. at 321 (citing Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69–70 (1913)). And unlike higher levels of scrutiny, there is no tailoring requirement under
Before applying this test, a clarification about the level of generality at which we should apply it. For an equal protection challenge, we must justify the classification itself, not the broad statutory scheme in which the classification resides. See Beach Commc‘ns, 508 U.S. at 313;
Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 819 (4th Cir. 1995) (“If the classification utilized is explicitly stated on the face of a statute ..., then the equal protection analysis requires us to determine whether an appropriate relationship exists between the legislative purpose and the classification adopted to achieve that purpose.“). But we must also avoid focusing too precisely on how “general lines . . . may affect particular individuals.” Wilson v. Lyng, 856 F.2d 630, 633 (4th Cir. 1988). Our focus must be on the provision, not the person and not the whole scheme. At this point, we need not decide whether the sex-offender registry as a whole is justifiable—though it surely is. Here we must justify the Romeo-and-Juliet provision that provides mitigation only for some; that is the classification that Doe challenges.
One argument that Virginia makes in defense of its law is that the two crimes are different in nature, as if that justifies the worse treatment for indecent liberties. This is where Doe‘s common-sense argument is at its best. We do not see how worse treatment for people in Doe‘s shoes is rationally related to the different natures of the acts. Carnal knowledge is by all accounts the worse crime. Sex with a child is worse than asking the child for sex. And a rational response would be to treat the worse crime worse. Cf. People in Int. of Z.B., 757 N.W.2d 595, 600 (S.D. 2008) (finding an equal protection violation where juvenile sex offenders were treated worse than adult sex offenders). Virginia does just that in sentencing. Compare
But there is a better justification. In fact, we are tasked with imagining any conceivable justification for this classification, see Beach Commc’ns, 508 U.S. at 315, and there is at least one that will do: ensuring that children do not become Tier III sex offenders. Above we mentioned how carnal knowledge can involve 15-, 16-, and 17-year-old offenders and how indecent liberties only ever involves offenders over 18. While that minor distinction may not definitively separate the two crimes in our similarly situated analysis, it is decisive here. We do not doubt that the government has a legitimate interest in not imposing its harshest collateral consequences on children, even children who commit serious felonies. Cf. Graham v. Florida, 560 U.S. 48, 68 (2010). And this 5-year-gap provision is at least rationally related to that purpose. It ensures that, even though children can be charged and convicted of carnal knowledge, they will not become Tier III offenders on the
B. Eighth Amendment Claim
Doe also claims that his placement on the Virginia sex-offender registry violates the
The Supreme Court has created a two-part test for determining whether a statute imposes punishment. First, we must ask if the legislature intended to inflict punishment, which is a question of statutory interpretation. Smith v. Doe, 538 U.S. 84, 92 (2003).11 If we find the intent was punitive, that is end of the inquiry. If not, we then must look to the effects of the law. Id. If the effects are punitive, they may override the legislature’s intent, but we must give deference to the legislature on this point, and we will require “the clearest proof” to overturn those intentions. Id. at 105. The Court has devised a multi-factor test to determine whether the punitive effect of the law is so overwhelming that it negates the State’s nonpunitive intentions. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963); Smith, 538 U.S. at 96.12 The Virginia sex-offender registry is not a punishment at either step.
1. Punitive Intent
We start by looking to the Virginia legislature’s intent, which is largely a question of statutory interpretation, Smith, 538 U.S. at 92, and helpfully, Virginia’s intention is written right into the code. Section 9.1-900 is called “Purposes of the Sex Offender and Crimes Against Minors Registry,” and it aims “to assist the efforts of law-enforcement agencies and others to protect their communities and families from repeat offenders and to protect children from becoming victims of criminal offenders by helping to prevent such individuals from being allowed to work directly with children.” Though community protection and deterrence are goals of both criminal and civil legislation, the Supreme Court in Smith tells us that a state can pursue objectives like these through a regulatory scheme without making the statute a “punishment.” 538 U.S. at 93–94 (holding that a statement of purpose to “protect[] the public from sex offenders” showed nonpunitive legislative intent); see also United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (“Keeping potentially dangerous weapons out of the hands of unlicensed dealers is a goal plainly more remedial than punitive.“). Considering Smith, the
Doe makes several contrary arguments, but none can shift our reading of the statutory purpose. He points out that some of the registry’s requirements are set out in the Virginia criminal code. See, e.g.,
Doe’s best argument has not yet been resolved by the Supreme Court. He notes that the sex-offender registry was originally set up within the criminal code and lacked any statement of purpose. See
Even if we were tempted to question the legislature’s sincerity, a Virginia intermediate appellate court has interpreted this statute and held that it is not penal. Kitze v. Commonwealth, 475 S.E.2d 830, 832 (Va. Ct. App. 1996). And “we generally treat intermediate appellate-court decisions as good evidence of state law,” absent good reason to doubt their conclusions. United States v. Smith, 939 F.3d 612, 617 (4th Cir. 2019). As explained above, we have every reason to agree with the Virginia court’s statutory interpretation that the Virginia legislature’s intent was not penal. So we will not second-guess both the Virginia legislature and the Virginia judiciary on this point.
Because we find that the Virginia sex-offender registry was intended to be a civil regulation and not a punishment, we move on to Smith’s next step and ask if the law’s punitive effect is so overwhelming that it negates the State’s intentions.
2. Punitive Effect
To assess punitive effect, we look to the list of seven factors first compiled in Kennedy v. Mendoza-Martinez, 372 U.S. at 168–69, and then adopted in Smith. 538 U.S. at 97. These factors have been used in a handful of constitutional contexts—Ex Post Facto Clause, Sixth Amendment, and
- (1) has been regarded in our history and traditions as punishment;
- (2) imposes an affirmative disability or restraint;
- (3) promotes the traditional aims of punishment;
- (4) has a rational connection to a nonpunitive purpose; [and]
- (5) is excessive with respect to this purpose.
United States v. Wass, 954 F.3d 184, 193 (4th Cir. 2020) (quoting Smith, 538 U.S. at 105) (cleaned up and reformatted).13
But we do not operate in the open field; both the Supreme Court and this Court have applied this test to sex-offender-registration laws before—the Supreme Court considered the Alaska Sex Offender Registration Act in Smith and this Court considered the federal Sex Offender Registration and Notification Act in Under Seal.14 Each court found the registry to lack the overwhelming punitive effects needed to overturn legislative intent. In Smith, Alaska’s sex-offender registry and notification law included many of the same regulations as the Virginia registry here: prompt registration, fingerprinting, large amounts of information, notification of movement, the threat of criminal prosecution for noncompliance, and the posting of a convict’s photo, information, and status on the internet. See 538 U.S. at 89–91. In Under Seal, the federal registry included a statement of purpose much like the one in Virginia’s registry and most of the same requirements: registration, regular in-person verification, and the provision and publication of personal information. See 709 F.3d at 260–61. While we examine Virginia’s registry under the Mendoza-Martinez factors and find some differences from the schemes considered in Smith and Under Seal, we cannot find that Virginia’s registry is so different from these other registries that the result is different.
Rational connection to a nonpunitive purpose. Because Smith tells us that this is the most significant factor in assessing punitive effect, we begin here, and Virginia’s sex-offender registry is rationally connected to the legitimate goal of public safety. 538 U.S. at 102 (holding that the statute need not have “a close or perfect fit with the nonpunitive aims it seeks to advance“); Doe v. Miller, 405 F.3d 700, 721 (8th Cir. 2005) (suggesting that this factor “is not demanding“). Both Smith and Under Seal found that the registries there related to the purpose of “alerting the public to the risk of sex offenders in their communit[y].” See Smith, 538 U.S. at 103; Under Seal, 709 F.3d at 265. The same is true here. The statute explicitly adopts this purpose.
Some courts have found that sex-offender registries may increase recidivism and therefore harm public safety, but the Virginia legislature is free to disagree with that empirical prediction or pursue other goals like investigatory efficiency. See Kitze, 475 S.E.2d at 832–34 (offering similar justifications for the Virginia law); Am. C.L. Union of Nevada v. Masto, 670 F.3d 1046, 1057 (9th Cir. 2012). But see Does #1-5 v. Snyder, 834 F.3d 696, 704–05 (6th Cir. 2016) (finding that studies showing a limited effect on recidivism suggest there
Because this factor favors Virginia and because it is the most important factor, this is strong evidence that the law is nonpunitive in effect.
Excessive with respect to its purposes. This excessiveness inquiry is not about second-guessing the legislature’s choice of solution; we only ask whether the chosen means are “reasonable in light of the nonpunitive objective.” Smith, 538 U.S. at 105. This inquiry is reminiscent of the rational basis test we have already considered; the Virginia legislature is due our deference, and we may only question their work in rare circumstances. We need only confirm that fit between the purpose and its execution is reasonable. The registry furthers the nonpunitive goal of public safety.
Doe argues that it is excessive in doing so. We disagree. The information required of the offenders is useful and relevant to the purposes of the law and helps ensure that police and the public can make informed decisions. The limited work restrictions and limits on entering schools without permission are reasonably related to protecting the vulnerable and preventing recidivism.
That Doe himself may not pose a danger is beside the point. The
Virginia’s registry differs in some respects from those in Under Seal and Smith but those differences do not make it unreasonably overbroad. The federal sex registry also uses a three-tier system, but the third tier of Virginia’s system is arguably broader. Compare
Historical punishments. Next, we look to a survey of historical punishments “because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition.” Smith, 538 U.S. at 97. Because offender registries are a modern invention, we proceed by analogy, comparing the registration scheme to historical punishments to consider whether the effects are the same. See id. at 97–99.
The first potential comparison is public shaming. There is a whole suite of strange old punishments that fit into this category. In his Commentaries, Blackstone includes in his list of punishments that “consist principally in their ignominy” things like
The courts in Smith and Under Seal rejected this comparison. One important distinction is that those old punishments involved physical pain and direct confrontation with the community. Smith, 538 U.S. at 98; see also 4 Blackstone, at *370 (“[M]ost of them are mixed with some degree of corporal pain.“). But that was not always true; for a famous example, take the real Massachusetts law that inspired Nathaniel Hawthorne’s The Scarlet Letter. As punishment for adultery, the guilty were required to “for ever after wear a capital A, of two inches long and proportionable bigness, cut out in cloth of a contrary colour to their cloaths, and sewed upon their upper garments, on the outside of their arm, or on their back, in open view.” An Act, Against Adultery and Polygamie, Acts and Laws, Passed by the Great and General Court or Assembly of their Majesties Province of the Massachusetts-Bay in New-England 72 (1694).
That Massachusetts law proves that some shaming punishments did not necessarily involve physical pain or mass public confrontation. But this is the closest to an analog Doe might point to, and even this punishment was more degrading than a photo on a website. More importantly, “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Under Seal, 709 F.3d at 265 (quoting Smith, 538 U.S. at 98).
Other details do not change things. Designating the crime “Tier III” might add some extra shame, but convictions are already public, and it is hard to see how this label would add much embarrassment. Compare Prynne, 848 F. App’x at 101–03, with id. at 110 (Agee, J., dissenting). The “geographic reach of the Internet” brings in other complications, considering that a sex offender can now be identified by anyone in the world rather than the few people who fit in the town square. But the Supreme Court has held that this does not make a registry “punitive“; rather, it is “necessary for the efficacy of the scheme.” 538 U.S. at 99. Virginia’s sex-offender registry is not like historical shaming punishments.
Another candidate is banishment. The comparison seems strained and metaphorical at first glance, but the Sixth Circuit has found the analogy useful. See Snyder, 834 F.3d at 701–02. That court found that a limitation on where sex offenders can live and work is “very burdensome, especially in densely populated areas.” Id. (including a map of the Grand Rapids area illustrating this point). But that scheme imposed restrictions of 1,000 feet. Id. Virginia law prohibits some sex offenders from loitering within 100 feet of a school or daycare.
Finally, parole and probation. The Court in Smith said this comparison had “some force” but rejected it because “[p]robation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction.” 538 U.S. at 101–02. The Alaska registration scheme there did not involve any real supervision. Id. But this Virginia scheme creates criminal violations for disregarding the registry’s rules. See, e.g.,
We also note two founding era laws that suggest that—far from being considered punishments—registries and other publication of personal information would have been considered common regulatory tools. First, consider the census. In 1790, the United States held its first census. United States Census Bureau, 1790 Overview, History, Census.gov (last visited Jan. 20, 2022). The Census Act of 1790 required not only that States count their inhabitants but also that a copy of the official schedule of the census for each district be “set up at two of the most public places” in the district, “there to remain for the inspection of all concerned.” An Act Providing for the enumeration of the Inhabitants of the United States, ch. 2, § 6, 1 Stat. 101, 101–03 (1790). That schedule included the names of the heads of all the counted families. § 1, 1 Stat. at 101–02; see also United States Census Bureau, 1790 Census: Heads of Families at the First Census, Census.gov (last visited Jan. 20, 2022). Of course, there is nothing inherently damaging in having your name publicly listed as the head of a household, so in that way, it is distinguishable from a sex-offender registry. With that said, this example provides at least one data point that, historically, public registries were used as regulatory tools and not punishments. The next example shows that even registries publishing negative information were not considered punishments.
Less than a decade later, Congress passed the infamous Alien and Sedition Acts, which included a registry for all aliens. See An Act supplementary to and to amend the act, intituled “An act to establish an uniform rule of naturalization; and to repeal the act heretofore passed on that subject,” Ch. 54, § 4, 1 Stat. 566, 567 (1798). Aliens had to report to the local district clerk and provide their name, age, residence, and occupation; that registration information was then sent to the Secretary of State; and anyone who was caught avoiding this requirement would be
In sum, while there are similarities between historical punishments and this modern-day registry, we find that the Virginia sex-offender registry is more like the common regulatory devices used at the founding than it is like historical forms of punishment.
Affirmative disability or restraint. The Virginia registry imposes some affirmative disabilities and restraints on offenders like Doe. On this factor, “minor and indirect” restraints will not be punitive; we look for something more substantial. Smith, 538 U.S. at 100. Imprisonment is the “paradigmatic” example of an affirmative restraint, see id. at 97–100; Kansas v. Hendricks, 521 U.S. 346, 356 (1997), and Doe is not subject to anything like prison. That is why Smith and Under Seal found this factor to cut against a finding of punitive effect, because neither registry imposed anything like prison and neither sought to “restrain activities sex offenders may pursue” or require them to “seek permission” before acting. Under Seal, 709 F.3d at 265 (quoting Smith, 538 U.S. at 100). The same is true here, as one can move or change jobs without permission. Id.
Virginia’s scheme includes some restrictions and impositions, but they do not approach the level of restraint imposed by a prison sentence. To start, offenders cannot hold certain jobs. But job restrictions cannot alone make a punishment. See Smith, 538 U.S. at 97–100.15 Tier III offenders must also ask permission to enter a school during school hours, even to visit their own child. See
Promotes the traditional aims of punishment. Finally, while Doe can find aspects of the traditional justifications for punishment in Virginia’s registry, the law is better understood as promoting public safety. This factor considers whether the government action promotes the traditional goals of punishment, mainly retribution and deterrence. Smith, 538 U.S. at 102; see also Under Seal, 709 F.3d at 265. In working through this factor, the Court in Smith did not find it sufficient to simply state how the law might further the goals of retribution and deterrence; to show punitive effect, the Court required retribution and deterrence to be primary factors of the law. 538 U.S. at 102.
That is simply not the case here. There are wisps of deterrence and retribution, but not enough to show punitive intent. The threat of the registry does provide
On balance, we find that these factors do not demonstrate punitive effect, especially considering the deference we must give to the legislature’s intent. Even if we were inclined to disagree with the legislature, Virginia’s registry does not have punitive effects so far beyond the registries in Smith and Under Seal that they would make this case distinguishable. So we hold that the effect of the Virginia sex-offender registry is not so clearly punitive that it overcomes the intent of the legislature. Therefore, because this registry is not a punishment, the
3. Remaining Claims
Doe also brings claims under a federal substantive due process theory and under the Virginia Constitution. Both can be dealt with in short order. A substantive due process challenge is considered under rational-basis review unless some fundamental right is implicated. Herndon v. Chapel Hill-Carrboro City Bd. of Ed., 89 F.3d 174, 177 (4th Cir. 1996). We hold that Virginia’s sex-offender registry is rationally related to the legitimate public interest in public safety because it “alert[s] the public to the risk of sex offenders in their communit[y].” See Smith, 538 U.S. at 102–03.
As to the state claims, the district court declined to exercise supplemental jurisdiction over them after dismissing all of Doe’s federal claims. Because we agree with the district court’s dismissal of his federal claims, we also agree with the district court’s dismissal of his state claims.
* * *
If an 18-year-old man in Virginia has “consensual” sex with his 14-year-old girlfriend, and the next day, sends her a text message asking her to do it again, he will have committed two crimes. But under the letter of the law in Virginia, only one of those crimes will place him on the worst tier of sex offenders on the registry with the rapists and the murderers: the text message. That may not make much sense.
But our Constitution “presumes that even improvident decisions will eventually be rectified by the democratic process.” See Cleburne, 473 U.S. at 440. The judiciary is not meant to revise laws because they are clumsy, unwise, or—even in some cosmic sense—unfair. In cases like this, courts are asked to make judgments about what is inside and what is outside the precise lines drawn by the Constitution. And whatever else they may be, Virginia’s sex-offender registry and its narrow Romeo-and-Juliet provision are constitutional. Accordingly, the district court’s judgment is
AFFIRMED.
Notes
A. Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony:
(Continued)
- Expose his or her sexual or genital parts to any child ... or propose that any such child expose his or her sexual or genital parts to such person; or ...
- Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; or
- Propose to such child the performance of an act of sexual intercourse... ; or
- Entice, allure, persuade, or invite any such child to enter [a place] for any of the purposes set forth in the preceding subdivisions of this subsection.
The legal philosopher H.L.A. Hart used a similar definition. For a legal obligation to be characterized a legal punishment: “(i) It must involve pain or other consequences normally considered unpleasant. (ii) It must be for an offence against legal rules. (iii) It must be of an actual or supposed offender for his offence. (iv) It must be intentionally administered by human beings other than the offender. (v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.” See H.L.A. Hart, Punishment and Responsibility 4–5 (1968).
Justice Stephen Field offered this definition in the 19th century: “The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.” Cummings v. Missouri, 71 U.S. 277, 286 (1866).
Founding era legal dictionaries echo this focus on the cause-and-effect interaction between a legal violation and the imposition of some negative consequence by the state. See, e.g., Samuel Johnson, A Dictionary of the English Language, (10th ed. 1792) (“Any infliction imposed in vengeance of a crime“); Noah Webster, An American Dictionary of the English Language (1828) (“Any pain or suffering inflicted on a person for a crime or offense, by the authority to which the offender is subject“); Giles Jacob, A New Law Dictionary (1782) (“Is the penalty for transgressing the law: And as debts are discharged to private persons by payment; so obligations to the public, for disturbing society, are discharged when the offender undergoes the punishment inflicted for his offense.“).
But we follow the Supreme Court’s two-part test.