Here's one about which you should have an opinion.
On the one hand, the Court of Appeal has a darn good point. It's profoundly silly to do what the Legislature has apparently done. Maurice Ruffin was a prisoner, and a guard saw a female visitor with her head in his lap in the visiting area. That's a crime. No oral sex for prisoners while you're in prison. Even if consensual. He pleads guilty and gets sentenced to 16 months in prison.
That part's not silly. Or at least not profoundly so. We can legitimately say that one of the deprivations that you receive when you're in prison is that oral pleasure is out of bounds. And punish you accordingly.
What's somewhat absurd, however, is that as a result of the conviction, Ruffin -- who's never before been convicted of a sex-related offense (he's simply a robber) -- is now subject to mandatory lifetime registration as a sex offender. A penalty that's not only darn severe, but simply bizarre. The theory behind registration, of course, is that we want to know where you are so we can make sure that you don't reoffend. But remember: What Ruffin did was not only consensual, but isn't illegal outside of prison. So we're forcing him to register forever in order to make sure that he doesn't commit an offense that he's now perfectly entitled to commit. Wacky.
But it gets worse. Prison inmates who have consensual relations with anyone while in prison are subject to mandatory registration. But prison guards who have consensual relations with an inmate aren't. The latter's a crime, to be sure, and almost assuredly the more serious one -- after all, there are power differentials, the potential for abuse and/or quid pro quos, etc. Yet we give it the lesser penalty, including no mandatory sex offender registration. Crazy.
So on the one hand, I can't come up with a valid defense for this disparate treatment that makes sense. None. It's just silly.
But the difficult part is remembering that courts aren't the Legislature. We don't take policy-oriented votes, or decide what's silly and what's not. Judicial officers have a very circumscribed role.
So when the Court of Appeal holds -- as it does here -- that the statute is an unconstitutional violation of the Equal Protection Clause, my eyebrows get raised.
Do I agree that the disparate treatment is unwarranted? Yep. Without a doubt. But we're not talking about a suspect class here. The only relevant inquiry under the Equal Protection Clause is rational basis review. A review that doesn't require the Legislature to give a reason, that doesn't require the Legislature to get it right, and that doesn't require the Legislature to have a good argument for what it does. Rather, we ask ourselves only whether there could possibly be some potential reason for the disparate treatment of the two classes: a group of prison guards, singled out for lesser punishment, and a group of prisoners singled out for more.
And, on that score, I gotta say, yeah, there's an argument. Personally, yes, I'd punish the guards more. For all the reasons I identified above. But a legislator with a different personality might do the exact opposite. A legislator might think that guards are generally good people; that they operate under stress; that they generally do things for good (rather than bad) reasons; and that even when they make mistakes, they should generally be forgiven, or at least have the option of being forgiven. Hence justifying no mandatory registration. At the same time, that legislator might think that incarcerated criminals are already one-time losers; that they tend to do things for bad (rather than good) reasons; that the need for prison rules is critical; and that prisoners who offend while already in prison are the most likely to reoffend. Such a legislator might also believe that while a guard who mistakenly has consensual contact with an inmate is generally unlikely to commit other sex crimes once caught and punished, an inmate who's so desperate for sex that he's willing to violate the sex rules while in prison might not only engage in similar conduct once released, but other sex-related statutes as well; e.g., sex with minors, with relatives, with unconsenting people, etc. So such a legislator might well vote to make sex offender registration mandatory for prison inmates but not for guards.
And, in this regard, the standard of review is critical. The question is not whether that legislator is right, and is not even whether that's why, in fact, the Legislature did what it did. The issue is simply whether a person could legitimately hold such a view. And since I'm quite positive that at least one (non-insane) member of the California Legislature does, in fact, hold such a view -- and probably several others as well -- that seems a strong argument in favor of the statute's validity. As crazy and as silly as it undoubtedly is.
So, look, I like that the Court of Appeal takes these things seriously. A lot. But rational basis review can only do so much. And I'm pretty darn skeptical that it can do the work that the Court of Appeal has it do here.
I could potentially see an argument that consensual sexual activities are fundamental rights, thereby subjecting the disparate treatment here to potentially intermediate review (or at least "rational basis with teeth" -- though that phrase seems somewhat ironic given the underlying context). But even that's a difficult push, as we are talking about consensual sex relations in prison, and at that level of generality, we're probably no longer on the "fundamental right" grounds.
So while I'm sympathetic to the Court of Appeal's holding, I'm not sure I can agree with it. It definitely makes for better law. I just don't believe that the Equal Protection Clause, as currently construed, permits us to get there.
