Reply #12: A little perspective

[Gyre]

The statute that Alva was convicted of was this one.

Section 311.11, subdivision (a) incorporates by reference the definition of sexual conduct set forth in section 311.4, subdivision (d)(1), which defines sexual conduct to include any of the following,
whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals.

Now you can have an intelligent discussion about whether it's a "cruel and unusual" ,uhhh, not punishment. Huh? That's the rub with: section 290 of the Penal Code (sex offender registration), the MDO (mentally disordered offender) statute, the SVP (sexually violent predator) statute. All of these things potentially expose the recipient to something painful at the end of the jail term, and it's pretty onerous.

Nobody whose got a conviction like that, misdemeanor nothwithstanding, wants to potentially be exposed to his neighbors as a "sexual predator". Nobody (more or less) who's been convicted of two or more (designated violent sexual felonies) wants to have some shrinks at Atascadero making the call as to whether he's going to be a "danger to society" and then likely stay incarcerated after he should've gone to parole, or even after the parole period is over.

Even though those things sure as hell feel like a punishment to the person convicted, the courts have consistently construed these statutes to not be punitive intentionally, hence, it's not "punishment" and the "cruel and unusual" prohibition doesn't apply. The courts further cite the intent to preserve "public safety" as a justification. As if to say that even if it's a "cruel and unusual" punishment, it's justified. The law is weird that way.

Don't get me wrong. I'm glad that these laws exist. However, I can't think of a better candidate for constitutional amendment than to insert a caveat re: public safety.

Gyre