The Registry and “Constitutional Vagueness”

The term “constitutionally vague” seems to be popping up over the past few weeks in articles related to registrants.

Residency restrictions, places where minors might gather, loitering as opposed to just standing or sitting, it’s all quite vague when it comes to “what’s a registrant supposed to do?”

In doing some research it seems there is a no-brainer doctrine in the law called, of course, The Vagueness Doctrine. It is a constitutional rule that requires criminal laws to state “explicitly and definitely what conduct is punishable”. Laws that violate this rule are said to be “void for vagueness”. Basically the Vagueness Doctrine rests on the due process clauses of the 5th and 14th U.S. Constitutional Amendments and is supposed to prevent arbitrary enforcement of the law.

When it comes to the registry, registrants are not provided a handbook with any clear-cut instructions.

Does “don’t go anywhere where children may congregate” prevent you from stepping outside your front door if children are playing on the sidewalk in front of your house? Will waiting in a car outside of a friend’s home to pick them up land you in jail if that home happens to be across the street from a school? Children congregate at church, does that mean you can’t practice freedom of religion? There is no way of knowing exactly and definitely what you are supposed to avoid and law enforcement officials have admitted they too find the restrictions vague and have difficulty determining when to enforce them.

The void for vagueness doctrine states that the law can’t be enforced if it is so vague or confusing that an average person can not figure out what is prohibited or what the penalties are for breaking that law.  Registrants are average people.

In lawsuits across the country Judges are looking at registry restrictions, scratching their heads and saying “I don’t know, this is just too vague”.  If they don’t understand it, how can registrants be expected to understand it? And isn’t that the crux of the matter?

Another law, the Overbreadth Doctrine” says a law is unconstitutional or void for being too broad if it covers activities which are protected by the Bill of Rights or state constitutional rights, or the First Amendment which would include the right to freedom of religion.

Some registrants end up choosing to not engage in behaviors that are clearly protected by the 1st Amendment, such as attending religious services, because they are fearful of accidently breaking the law.

The registry was clearly designed without any thought as to vagueness and overbreadth. Those responsible for it’s design may have viewed registrants as brainless offenders who would never question the registry’s vagueness or constitutionality.

Guess what?  They were wrong.


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