There are two strong principles that help shape our criminal justice system. One is that everyone is equal under the law. The other is that once the assigned punishment has been delivered, even a criminal gets a second chance.
But we ignore those principles when it comes to one group of criminals: sex offenders, especially those who have preyed on children. Even after they get out of prison, they are hounded. They must register their whereabouts, sometimes a lifetime requirement. They can’t go to public parks. They can’t live within a certain distance of a school. Sometimes it seems there’s nothing we can do to them that is out of bounds.
But not so fast, said the 7th Circuit U.S. Court of Appeals in Chicago. The Indiana law barring most registered sex offenders from using social networking sites such as Facebook is unconstitutional. The law bans offenders from any sites they know allow access to youths under the age of 18.
That ban is too broad, the court ruled, and “prohibits substantial protected speech.” Someone using such a site for a job search would be breaking the law. And so would someone, ACLU of Indiana legal director Ken Falk wryly notes, who is “participating in a Twitter feed with the pope.” To be upheld, the appeals court found, such a law needs to be specifically tailored to target “the evil of improper communication to minors.”
The overwhelming support for such a law – it sped through the Indiana House and Senate without a single opposing vote – is understandable. Such criminals are seldom rehabilitated – even some of them will freely admit they will strike again. And the online world is a target-rich environment for those looking for vulnerable children. Social networking has created a “virtual playground for sexual predators,” said U.S. District Judge Tanya Walton Pratt in initially upholding the law.
But the general rule in our system has been to punish someone once a crime has been committed, not forbid them from areas and practices that might lead to a crime later on. Any deviation from that practice should be considered with great care.
Indiana need not abandon this approach entirely. It can study the work of other states. Alabama, for example, requires sex offenders to register not only where they work and live but also which social networking sites they belong to. Police have access to the accounts so they can look in occasionally to see what the offenders are up to.
But there needs to be a balance. Even when we’re doing it “for the children,” we have to consider the rights of the individual as well as the safety of the group.