Let’s play count-the-constitutional-violations.

Michael Froomkin has been blogging one of the most barbaric criminal justice practices I’ve heard about in the U.S. since they stopped performing medical experiments on prisoners.

Apparently — get this — Miami-Dade county parole officers have been ordering released sex offenders to live under a bridge. The county’s version of Megan’s Law is so restrictive (particularly, because it forbids sex offenders from living within 2500 feet of a school — 2.5 times the state distance) that there are almost no places for these people to live, so, even though relatives have offered to take them in, their parole officers are ordering them to be homeless.

The parole officers are actually going and checking on them: there’s a 10pm-6am curfew, and the parole officers go and verify that they are actually sleeping under the bridge. If they don’t do so, they get arrested.

So many challenges to Megan’s Law under the 8th amendment have been rejected on the grounds that post-conviction “community protection” provisions aren’t “punishment.” But, in this case, it seems to be a condition of parole (although, presumably, it applies to offenders who are not on parole too) — does this bring it within the ambit of the 8th amendment?

If not, I’d still think something like this has to be unconstitutional. This is where Justice Douglas’s penumbras and emanations make a lot of sense, and where the concerns of the framers that having an enumerated bill of rights would inappropriately imply that rights not listed were not present start to become a lot more salient. The government’s ordering anyone, even people convicted of heinous crimes, to be homeless and sleep under a bridge is a major violation of the fundamental relationship between a free society and its citizens. I don’t particularly care what provision of the constitution that basic truth gets pinned to to make it something that the courts can swallow, and you can take your dark remarks about Lochner to someone who cares. Call it substantive due process, call it an extension of the right to interstate travel, call it some kind of taking for all I care. It’s unconstitutional at a much deeper level than a simple failure to match the text of some silly document. (Where is Ronald Dworkin when I need him? Can I have some law as integrity firepower here?)

And don’t get me started on the idiocy of Megan’s laws in general. Is there any evidence that this reduces recidivism? And how many “sex offenders” are actual child molesters &c instead of, you know, 22 year olds who had sex with their 17 year old boy/girlfriends, or people who violated sodomy laws or responded to gay-entrapment public bathroom cop solicitations?

From one of the stories:

Until last week, Big Man was serving a four-year sentence for cocaine possession. A few days ago, he was looking forward to leaving prison and reuniting with his wife, until he got the news: Instead of going home, he’d be living under a bridge, a parole commission officer told him. That’s because 23 years ago, when he was 19 years old, Big Man was charged with sexual assault on a minor. (He claims the victim was his girlfriend and that it was consensual.)

!!!!! Is that story right? Let’s forget about the fact that the sort of crime at issue is not the sort of child-molester thing that the Megan’s Law proponents care about — there’s no even slightly plausible reason to keep ordinary rapists, no matter how evil they are, away from schools.

Instead, let’s focus on that word “charged.”

Charged? Can this story be right? Are parole officers applying Megan’s law to people who were merely CHARGED with sex crimes?!!? That’s a whole ‘nother level of due process violation.

How about some more due process violations? Here’s a lovely catch-22 from the previously linked article.

About a third of the men are harnessed with GPS monitors — despite the fact that they have no regular access to electricity to charge the batteries. If the generator is working, Ortiz usually obliges; otherwise the men either allow their boxes to shut down — technically a violation of their probations that could land them in jail — or resort to more extreme measures. One offender sometimes walks across the causeway to Wendy’s, where he surreptitiously charges his box from a booth.

Yes, that’s right. The state has ordered these people to have this GPS monitor charged, and has ordered them to live somewhere without electricity.

We, the “civilized” people in this country, would get precisely what we deserve if the victims of this sort of cruelty resort to violent marauding to make their lives functional and express their frustration at the treatment to which they are being subjected.

I’m just waiting for someone to have (otherwise legal) sex under that bridge, get charged with public lewdness, and then get told to… live under the bridge.


7 Responses to “Let’s play count-the-constitutional-violations.”

  1. eric Says:

    The law, in its majestic insanity, bids sex offenders to sleep under bridges.

  2. Daniel Goldberg Says:

    We still perform medical experiments on prisoners, Paul.

  3. Paul Gowder Says:

    Shit. I was afraid you were going to say that. I was hoping otherwise. I was hoping that we’d stopped. But. But.

  4. Daniel S. Goldberg Says:

    If it makes you feel any better, prisoners are considered a vulnerable population under the regs, and research on prisoners must meet extra safeguards to be conducted.

    Whether that makes such research ethically permissible, however, is another question.

  5. Arvita Says:

    Really, we do? Would you mind citing a source? Not that I don’t believe you, I’m just curious. I work pretty closely with clinical trials, being in the medical device industry. This seems like something so exploitative that no company would consider, lest they get sued. Is it a government run trial? Is there an IRB? Is participation mandatory? Please, tell me more or point me to a someone that I can interrogate.

  6. Daniel Goldberg Says:


    A quick search of clinicaltrials.gov reveals 25 trials being conducted in prisons. Although the new registration requirements do indicate all trials must be registered on Ct.gov, there is general agreement that CT.gov is still nowhere near being a comprehensive listing of all CTs going on in the U.S.

    (let alone overseas, where most CTs are moving these days)

    A quick Google search turns up 2006 recommendations from a federal panel indicating that the regulations as to research on prisoners be loosened.

    The aforementioned Google search turns up a host of articles and discussion, most of them quite recent.

    Finally, the institution where I am a graduate student, University of Texas Medical Branch, provides medical care for the nearby prison on Galveston Island, and I have seen some of the research being done there firsthand (thus in this case my anecdotal impressions simply confirm the wide evidence on the matter, rather than acting as the evidence . . . )

    Some of these trials are government funded, though I’m not sure I understand what an (NIH) government-run trial looks like, since NGOs are virtually always involved in NIH-funded research. There’s always an IRB, as this is mandated by federal law. Participation is not, per se, mandatory, but part of the concern is whether someone lacking most basic freedoms — as well as health care — can truly consent to participate in human experiments.

    The regs are here, in case you are interested.

  7. Daniel Goldberg Says:

    Hmm: try here for the regs.

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