Too Poor for Freedom: Sex Offender Registry and the Fourteenth Amendment

By Gabriel Loupe, Senior Associate

October 11, 2016


If a school mandated uniforms and suspended a child too poor to afford them, there would be an uproar. Media would excoriate the school for denying the impoverished an education due to their financial circumstances. Many would wonder at the cost of a uniform relative to the school’s budget, suggesting that the school simply offer the child a simple uniform. As ever, our instinctive notions of justice and fair play seem to end at criminal court. In the state of Louisiana, a person required to register as a sex offender who cannot afford to do so, even if he or she turns himself or herself in to the police and asks for help, will be tried, found guilty, and sentenced to prison.[1] Inability to pay will not protect the sex offender from incarceration, nor will informing law enforcement and requesting aid. Under the current regulatory scheme, indigent sex offenders who have served their time have only prison in their future.

This comment argues that imprisonment and fines subsequent to a failure to register, when the offender cannot afford to pay registration costs, are unconstitutional under a substantive due process analysis, as per Bearden v. Georgia.[2] It explains the negative policy implications of the current system. Finally, the comment proposes a legislative solution—the Louisiana Legislature should establish a fund to cover the cost of registry for indigent sexual offenders.

Bearden v. Georgia and Imprisoning Good-faith Indigents

In 1983, the United States Supreme Court decided Bearden v. Georgia.[3] In Bearden, the Court held that the automatic revocation of probation because a probationer could not pay his fine violated due process.[4] In its due process analysis, the Court considered “the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, and the existence of alternative means for effectuating the purpose.”[5] The Court noted as critical the distinction between an indigent probationer who cannot afford to pay and one who “has willfully refused to pay . . . when he has the means [or has failed] to make sufficient bona fide efforts to seek . . . [means] to pay the fine or restitution.”[6] Although the Court acknowledged the state’s interests in revoking parole, it nevertheless ordered that, should a sentencing court find that a “probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment.”[7]

Sex Offender Registry in Louisiana and its Problems Under Bearden

The cost of registry and notification is best described as “death by a thousand cuts.” A person convicted of a crime requiring registry must provide “notice of the crime for which he was convicted, his name, residential address, a description of his physical characteristics . . . and a photograph or copy thereof”[8] to various superintendents of various city services and, most importantly, “at least one person in every residence or business within a one-mile radius in a rural area and a three-tenths of a mile radius in an urban or suburban area of the address of the residence where the offender will reside.”[9] This notification must be repeated every five years and every time a person subject to the registry changes address.[10] Further, any person subject to the registry must, depending on the nature of his underlying offense, update his registration every three months, six months, or annually.[11]

Louisiana Revised Statute 15:542.1.4 provides that a person who fails to register, on first conviction, “shall . . . be . . . imprisoned with hard labor for not less than two years, nor more than ten years without benefit of parole, probation, or suspension of sentence.”[12] This imprisonment is an automatic denial of liberty similar to the revocation of probation at issue in Bearden and implicates issues of fair treatment under the Fourteenth Amendment.

Louisiana courts have largely refrained from addressing Bearden in this context. However, in State v. Jones, a recent case from Louisiana’s Fifth Circuit, Judge Wicker penned a particularly cogent dissent, arguing that Bearden should govern failure to register cases in which a defendant made a bona fide attempt to register, but could not due to indigence.[13] Unfortunately, the majority opinion made no mention of either Bearden or the Fourteenth Amendment, leaving readers to their own devices when ascertaining the court’s reasoning on this matter.[14]

A Failure of Policy

The current law does not provide any mitigation for people who make bona fide attempts to register. Nor does it provide mitigation for those who, knowing that they cannot register, contact the relevant authorities in order to inform them of their whereabouts. No state fund exists to pay for registration. This circumstances illustrate a failure of policy on multiple grounds. By not providing mitigation, the state fails to incentivize attempts to register. Those opposing mitigation may point out that the threat of incarceration is such an incentive. However, this argument fails when considering the benefit of sex offenders remaining in contact with relevant authorities. If sex offenders know that they will be arrested by informing police officers that they are trying and failing to register, the offenders will be more likely to evade the authorities. This increases the risk of recidivism and the risk to the community, because the state will no longer know the whereabouts of the offender.

The current law costs the state money. In her Jones dissent, Judge Wicker calculated “the cost of incarcerating Mr. Jones for his failure to fully pay a $580.00 community notification fee [at] $7,121.88.”[15] This calculation did not take into account the cost of prosecution or appeal; the total cost of Mr. Jones’ interaction with the criminal justice system was therefore even higher than Judge Wicker’s estimate.[16]

A Simple Solution

While the cost of registry and notification is insurmountable to the indigent, it is trivial to the state. The establishment of a program to help indigent offenders pay for their registry and notification would eliminate the need for any litigation on the matter. It would incentivize indigent sex offenders to maintain contact with law enforcement. It would also save the state money. Many legal questions have difficult solutions; this is not such a question. The Louisiana Legislature should take immediate action to rectify the situation and spare the state the future costs of expensive litigation and incarceration.

[1] See La. Rev. Stat. Ann. § 15:542.1.4.

[2] 461 U.S. 660 (1983).

[3] Id.

[4] Id. at 661–62.

[5] Id. at 666–67 (citing Williams v. Illinois, 399 U.S. 235, 260 (1970)).

[6] Id. at 668.

[7] Id. at 672.

[8] La. Rev. Stat. Ann. § 15:542.1 (2016).

[9] La. Rev. Stat. Ann. § 15:542.1(A)(1)(a) (2016).

[10] Id. § 15:542.1(A)(2)(b).

[11] La. Rev. Stat. Ann. § 15:542.1.1(A)(1)–(3) (2016).

[12] La. Rev. Stat. Ann. § 15.542.1.4(A)(1) (2016).

[13] State v. Jones, 182 So.3d 1218 (La. Ct. App. 2015) (Wicker, J., dissenting).

[14] See generally State v. Jones, 182 So.3d 1218 (majority opinion).

[15] Id. at 1225–26 (Wicker, J., dissenting).

[16] Id. at 1226.