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ACSOLJanice's Journal

Janice’s Journal: Sixth Circuit Speaks Truth

The Sixth Circuit Court of Appeals spoke the truth this week when it declared unconstitutional the retroactive application of sex offender laws in the State of Michigan.  In doing so, the Court demonstrated uncommon courage and set an example that should be followed by courts throughout the land.

The laws at issue in this case are common and can be found in many states.  First, they prohibited registrants from living, working or loitering within 1,000 feet of a school.  Second, they required registrants to report in person updated information regarding such matters as vehicle ownership and internet identifiers.

As in many states, the professed purpose of the laws was to make communities safer.  As in many states, the professed purpose was based upon the myth that registrants have a high rate of re-offense.  The Court soundly debunked that myth by referring to several recent studies, including a study which reported that such laws have not decreased, but actually increased, registrants’ rate of re-offense.

In its decision, the Court boldly stated that the Michigan laws resembled “the ancient punishment of banishment” as well as “traditional shaming punishments”.  The Court also stated that the laws branded registrants “as moral lepers” which made it difficult for registrants to get and keep a job, find housing and reintegrate into their communities.

In its decision, the Court did not ignore the U.S. Supreme Court decision, Smith v. Doe, which infamously declared that sex offender laws do not punish and therefore can be applied retroactively.  The Court, in fact, acknowledged the Smith decision and its difficult two-part test but stated “difficult is not the same as impossible”.  The Court concluded the plaintiffs in the case met that test and then bluntly stated that the Smith decision is not “a blank check to states to do whatever they please in this arena”.

The Court clearly stated that the Michigan laws advanced “all the traditional aims of punishment: incapacitation, retribution, and specific and general deterrence.”  The Court also clearly stated that punishment may never be retroactively imposed or increased.  The Court further stated that the fact that sex offenders are so widely feared and disdained by the general public implicates the core principle embodied in the Ex Post Facto clause of the U.S. Constitution – tyranny of the majority.

Thank you, Sixth Circuit, for speaking the truth on this subject.  We look forward to the application of your brave decision to many states throughout the land.  We also look forward to a review of your decision by the U.S. Supreme Court because it will provide that Court with an opportunity to overturn the unfortunate and misguided Smith decision.

Read all of Janice’s Journals

Related

MI: Court voids state sex offender registry for imposing unconstitutionally retroactive punishment [UPDATED]

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  1. HOOKSCAR

    AMEN!!!!

  2. K

    Well said. And thank you Janice for all you do.

  3. Michael A. Lewis Sr.

    Does this mean that All states will have to abide by this decision?

    • PK

      This is something I would like to research as well Michael.

      What are the implications for the states outside of Michigan?

      I would imagine that each state has it’s own constitution, which may or may not apply Ex Post Facto in the same way that MIchigan does.

      • DavidH

        PK

        The State’s constitutions aside–it was deemed unconstitutional under the US federal constitution–not a state’s; there fore it applies to all states within the 6th circuit and can be referenced as case law in lawsuit within any other circuit

    • Tobin's Tools 2.0

      Only states in the U.S. Sixth Circuit — Kentucky, Michigan, Ohio, and Tennessee — must abide by this decision.

      Other U.S. circuits, and lower courts in other circuits, may use this case only as “persuasive authority” IF they decide to rule in similar fashion.

      In California, for example, if a decision were to come from our highest federal court (other than the U.S. Supreme Court) it would need to come from the Ninth Circuit. And all published decisions would be applicable to ONLY states within the Ninth Circuit (i.e. Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington — as well as Guam and the Northern Mariana Islands).

      In sum, the Sixth Circuit having favorably decided this case certainly does not harm our cause. Courts in other circuits may be more willing to join suit.

      • Michael A. Lewis Sr.

        Well I guess I’m lucky then. I am presently living in Kentucky.
        I was thinking of moving to North Carolina but I don’t think that would be a wise move at this time.

      • Kris Klein

        Does that mean a bills like this one put forth by a Tennessee tea partier won’t be retroactive?

        http://www.nydailynews.com/news/national/tennessee-bill-put-red-labels-sex-offenders-driving-licenses-article-1.1704398

        States in the sixth circuit already have some of the most onerous laws against sex offenders. So the Michigan ruling doesn’t give me much comfort because at most the ruling may require states in the 6th to scale back anti registrant laws to what is “normal” in states like California. That’s probably why the ninth circuit hasn’t ruled that additional registry restrictions amount to punishment because the states in the 9th haven’t went bat shit crazy overboard with the registry laws as the case in Michigan & Tennessee

        • nomore

          Bait much? Felt the need to mention tea party huh? lol

          On the more rational things you said. I have some potentially bad news for this Michigan verdict but I’ll wait till I see what Michigan does in reply first. I think we might’ve been set up to fail lol. Something’s up.

          • Kris Klein

            Whoa dude! You’re a real riot! You pick a fight with Janice then you go nutso over someone citing info in an article that mentions a tea party candidate trying to get a sex offender drivers license bill passed in Tennessee. I really didn’t care about the tea party part until your sorry ass got offended by it. Maybe you’re one of them and I really don’t care what you think. I posed the question to Tobin’s Tool, not you
            …..baiting my foot. Get lost scum!

            • nomore

              Talk about nutso… I must’ve hit a nerve. Maybe you should grow up a bit and not parrot what a dbag party hack reporter that was mentioning it just for the smear factor.. Which is why you did it. Sure, you didnt do it like that, youre just an innocent wittle commentor. As for “picking a fight with Janice” I was right to do so. Two days later a judge in Michigan backed up my comments. Im so sorry i went after your messiah. I know how you religious fanatics can be sometimes. I should have known better. I’m not going anywhere unless they ban me.

          • Bobby

            I’m from from Michigan,how do you figure something up? sure AG Schuette wants the 6th circuit to reconsider it’s decision,but that is normal. I REALLY don’t seethe 6th circuit reversing it’s self,especially with all the questions the judges asked,and the lawyer for the state had NO clue what he was doing or what he was arguing about in my opinion.

            The Lawyer for the does,knew exactly what she was doing and what she was arguing about,so your question makes no sense. The Judges knew why they were siding withe the Plantiff’s and NOT the Defendants.

        • Tobin's Tools 2.0

          Kris,

          I don’t know the answer to your question. I guess wait and see… assuming that driver’s license bill is even passed.

    • Anonymous Nobody

      No, all states do not have to abide by this decision, only those in the Sixth District.

      However, you can bet this will be appealed to SCOTUS, so I wold not presume it will last long, but I hope it spreads across the land..

      • DavidH

        My knee jerk reaction was they would be all over appealing to the US Supreme Court; however, they have lots to lose if it does go and the result is in our favor, which on some level I think they’d give us–but it aint going away!

  4. Tobin's Tools

    The U.S Sixth Circuit did something the California Supreme Court failed to do last year in People v. Mosley:

    http://www.courts.ca.gov/opinions/archive/S187965.PDF

    The Sixth Circuit recognized registration, at least in Michigan, as a form of punishment.

  5. Freeborn

    Please tell me this means something to Missouri.

  6. G4Change

    Janice, et al: It may be hard to specifically prove this, but I FEEL deep down in my heart that this decision happened because of you all and your continued diligence and hard work in California. I hope and pray that this first “domino” that has finally been pushed over by this intelligent and brave judge will result in all of the rest of these “dominoes” being flattened down!

    • David M

      I live in Michigan and get email updates from the ACLU lady that fights the registered citizen issues and so can anyone else.

      Janice and her crew have 100% been a huge influence in legal battles in Michigan. If you want to get email updates regarding Michigan laws regarding RSO’s and court battles please write…. reformsolaw_mi@yahoo.com and request to be on the mailing list and state ur interest in doing so. Attention: Frances Giordano

      • nomore

        Maybe Janice will get inspiration from this case to get the same verdict in California instead of a tiered system. That would definitely be inspiring!

        • New Person

          Michigan courts denoted it is punishment due to the increase in penalty.

          I wonder if we can use this here. Anonymous Nobody has carefully outlined how 1203.4 (“expungement) used to give registrant relief from registration. Now, that relief was taken away, that counts as extra punishment.

          Recall, our state constitution denotes the inalienable right to privacy and/or obtain privacy. In taking away the relief after being awarded 1203.4, the state added punishment via making it more difficult to “obtain privacy”. This can easily be seen as one has to go to the local PD and register every year for the rest of their life.

          So who qualifies for this Ex post facto? I guess anyone who was on probation at the time the state changed the laws.

          Yet, it’s pretty evident that the state made it more difficult to “obtain privacy” by no longer giving relief after being awarded 1203.4.

          • Anonymous Nobody

            New Person, yes, I have pointed out how 1203.4 used to relieve both misdemeanants and felons of the registration requirement. That relief was dropped for felons in the mid-1980s and for misdemeanants in the early side of the mid-1990s. I note, that relief was not in 1203.4, it was a separate statute related to 290. That separate statute has now been merged into 290, so it isn’t even easy to find or get its background. And you did not have to file any notice to say you were going to or wanted to stop registering, you simply stopped — they already know.

            However, another thing I have pointed out is that the California Supreme Court, in Doe v. Harris (you know, the Harris who wants us to elect her to the Senate now), a couple years ago ruled that the state of the law at the time of a plea bargain is NOT incorporated into the plea bargain, the law can be changed later, even to your great disadvantage, even if you never would have taken the plea bargain under those circumstances. So, that makes it seem that a law changing your status of whether you have to register can be imposed at a later date, even if it is to your great disadvantage. Mind you, you won’t get around this by going to the federal courts – that case was in the Ninth Circuit, which decided it should be handled by the California high court instead! It was decided on the basis of contract law, not criminal law and retroactivity. The Ninth Circuit sent it to the California Supreme Court to decide! I knew we were lost the second they decided to send to that the California courts – we stand zero chance for anything in the California courts, they have proven every single time that they are as corrupt as it gets and hate us no matter what, they lie through their teeth every time. Its not just a matter of a different understanding, they are actually knowingly and intentionally lying, they are standing on their heads to do so.

            And both the California Supreme Court and SCOTUS have ruled registration is not punishment of any sort, so the punishment argument already has failed (another lie, of course). And now the state high court says its OK to change laws after the fact so that later you have to start registering.

            How sick these court rulings are. Here we have a lot of people who either plea bargained and accepted terms, or were given them after a conviction. They worked and did anything required, including being of good conduct, they earned the 1203.4 relief, and with that had earned the reward of no longer having to register. Probation and parole have always been considered to be the test of rehabilitation — in fact, 1203.4 has sometimes been referred to as “statutory rehabilitation.” (A COR isn’t really simply a determination of whether you are rehabilitated but whether you are of such high and exemplary conduct that you are worthy of a pardon. This is what the courts are meaning when they mention the “high standards” for a COR, not simply whether you have proven by the test of time that you are not reoffending.) Then, years later, maybe decades later, the law is changed, and suddenly they find they are required to start registering all over again, and forever more, and no way out form under it other than to apply for a pardon. And nearly no one gets a COR (that is the first part of the application for a pardon), and investigation for that itself can completely ruin you, and then not get it anyway, and have spent of fortune on lawyers and others to try to get it.

            And then if you do get it, and you can stop registering with simply a COR, you have to live in fear that tomorrow they will change the law and a COR will not be good enough, you will need a full pardon. That is the circumstances of what happened when people who did not have to register because they got 1203.4 relief suddenly had to start registering again! What they earned and were granted – -and was agreed to pas part of a plea bargain, whether overtly or implicitly as the state of the law — was taken away with the swipe of a pen. Since 290 is deemed not to be punishment, they are hit by its retroactivity more so than anyone else — their relief from it was taken away after the fact, what they earned was taken away, maybe after decades.

            • New Person

              The 13th amendment prohibits involuntary servitude.

              After you have completed probation or parole, then your punishment service ends. Yet… registration continues with the threat of felony punishment. That is the definition of involuntary servitude. Term of service doesn’t matter. The only way involuntary servitude is allowed is if it is to punish a crime – thus making registration punitive, a punishment.

              A person does not owe any service to the state or country after serving the prescribed punishment. Therefore making any service after probation or parole involuntary under threat of felony punishment coercion. That is strictly prohibited. UNLESS it is to punish a crime.

              Who cares if it is administrative, it is forcing people who are no longer under punishment service to continue service to the state under coercion of felony punishment – which is clearly stated to be prohibited in US Constitution (13th Amendment) and California Constitution (Article 1, Section 6).

              The term for said service is a lifetime. For some, it’s a time near their birthday, every birthday for life. For others, it’s every three months… for life. For others, it’s more than every three months… for life. But if your probation or parole has been completed, then the state has agreed you have fulfilled your punishment service. If this is so, then the state forcing a person into service under coercion of felony penalty (or any penalty above loss of pay or loss of job for said service) is strictly prohibited unless it is to punish a crime.

              The SCOTUS agreed that registration is legal despite what the 13th amendment prohibits? Either involuntary servitude is prohibited or it is punishment. How did the 13th amendment get glossed over?

              But to bring this back to California, not only is “lifetime registration” a lifetime of involuntary servitude, but it totally negates the inalienable right to possess or obtain privacy. A lifetime registration negates privacy for life.

              The 1203.4 denotes:

              the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.

              The key words are “ALL DISABILITIES”. Registration, according to law isn’t punishment, but it is a disability. Is not ALL encompass everything? Also a way to obtain said inalienable right to privacy?

              • Chris F

                Claiming that registration is “Involuntary Servitude” would be a waste of time when it will be laughed at by justices and there are so many other constitutional violations that have a higher chance of being proven.

                Just look here:

                https://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution

                It is apparent that if they don’t consider a military draft or community service for high school students as involuntary servitude, and only seem to apply it to actual hard labor cases dealing mostly with racial issues, then Sex Offenders with the burden of quarterly/annual registration don’t stand a chance with that argument.

                You may have some ground on the quote from 1203.4 releasing a criminal from ALL DISABILITIES though.

              • Timmr

                The draft and student service, in theory, apply to everyone of a certain age, not based on an offense, it it limited on time and one can get an exclusion, conscientious objector, to avoid military service. You also get paid in the military and there are other social benefits. 10, 25 years, especially lifetime of suffering on the registry from reduced employment, stress of public shaming, threats to life and limb, and threat of prison in exchange for information is clearly not the same. All this for a questionable at best public benefit. It is clearly different, and judges laugh because they are clowns and frauds, the ones who want to be liked.

              • New Person

                Chris F,

                I pulled the following quote from your wiki link:


                In Selective Draft Law Cases,[163] the Supreme Court ruled that the military draft was not “involuntary servitude”. In United States v. Kozminski,[164] the Supreme Court ruled that the Thirteenth Amendment did not prohibit compulsion of servitude through psychological coercion.[165][166] Kozminski defined involuntary servitude for purposes of criminal prosecution as “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process. This definition encompasses cases in which the defendant holds the victim in servitude by placing him or her in fear of such physical restraint or injury or legal coercion.”[164]

                So it is stated that involuntary servitude is for purposes of criminal prosecution. The only way this is legal is if it is considered punishment for a crime, otherwise it is prohibited under the US Constitution of the 13th amendment and the California Constitution, Article 1, Section 6.


                The court held that involuntary servitude exists only when the master subjects the servant to (1) threatened or actual physical force, (2) threatened or actual state-imposed legal coercion, or (3) fraud or deceit where the servant is a minor or an immigrant or is mentally incompetent.

                From case law: http://caselaw.findlaw.com/us-supreme-court/487/931.html

        • CXR

          Michigan has a tiered system. You mean California should get a tiered system then to be like Michigan?

          • nomore

            No, I mean Janice should go after retroactive punishment at the very least. There are numerous avenues that could be taken but that one, like the Michigan registry rejection could give relief to thousands upon thousands. How many were given life? 290 goes back retroactively to 1944, right? Come on! Challenge THAT shit. Who needs a tiered system to get a few off when you can give relief to tens of thousands.

            Where’s the michigan styled suit for 290?

            • D

              The registry in CA has been around since the 40s so they can’t have a suit based on ex post facto here since it was jot applied to anyone after their conviction (unless you can still find someone convicted prior to that)

              • D mccartin

                Hello D. Be careful going against the constitution you will be wrong again. Take the time to read restrictions laws and ordinances placed since 1994. The dates submitted in Michigan case mirror this state. Just send a donation to Janice that would be best for you to do .

              • nomore

                No, it had some form of registration, not sex registration. But, it looked nowhere like it is today and without many of the restrictions. I really wish people would take the time to get their facts straight before giving “opinions”. You do nothing but spread untruths like that.

              • New Person

                As Anonymous Nobody has denoted meticulously, one was relieved of registering once awarded the 1203.4. That was taken away. Hence, it increased punishment. How so?

                According to the California Constitution, there’s an inalienable right to privacy or obtain privacy. By removal of relief of registration via 1203.4, the state removed a direct path to obtain privacy – a lifetime worth.

                Yet the merits are there for revealing added punishment b/c a person has to continue to register as well as be regulated by the ever changing rules to registrants. Again, if it were the old rules of 1203.4, then one would not be subjected to register at all as well as regain the right to privacy.

                Instead, after being awarded 1203.4 for successfully completing probation/parole, registrants must still continue to register or be punished for not doing so. That is involuntary servitude – unless it is considered punishment for a crime.

                Registration outside of probation/parole is illegal if it is considered “regulatory” under Article 1, Section 6 of the California Constitution – unless it is considered punishment.

                Am I wrong to believe that once one has been awarded the 1203.4 that they are being forced into service of registering every year along with compliance checks. Despite the “regulatory” intent, the consequence to a free person not complying with the registration service is punishment outside of withheld pay or loss of job for not doing said service – unless it is punishment.

                Registration cannot be both regulatory and legal involuntary servitude (punishment).

                Thus registration is punishment or registration is prohibited under the California Constitution. The law sides with they layman’s interpretation.of Article 1, Section 6 is succinct.

                Also, lifetime registration inherently denies the “inalienable right to obtain privacy” as prescribed under Article 1, Section 1 – it’s lifetime registration… not three year registration, five year registration… it’s a lifetime registration.

                To me, it sounds so simple to utilize the California Constitution to combat “lifetime registration” as it runs contrary to two sections of the California Constitution. Where am I wrong on this logic?

              • Anonymous Nobody

                Nomore, re your suggestion of the privacy angle, that is one I have noted for some time has not been particularly pressed. And the California constitution has much stronger privacy protection than the US Constitution. I took special note of an Alaska Supreme Court decision based on its Constitution’s right to privacy that devastated a big swatch of registration there. But the privacy argument is different from the punishment argument, although you might be able to merge them.

                Meanwhile, as I said elsewhere, the Michigan suit used arguments nearly the same as in a California case from the late 1970s that held that simple, basic registration, and with a lot easier requirements than even basic registration has now, not only was punishment but such extreme punishment as to rise to the level of unconstitutional cruel or unusual punishment. (I used “or” because I’m pretty sure that is the word in the California constitution.) But the more current makeup of the California Supreme Court has overturned that earlier decision, saying it was simply wrongly decided. And it even said that registration was never considered to be punishment (then how did it land in the Penal Code?!) and is no punishment whatsoever!

                That is to say, California has already done that case that Sixth Circuit just decided, many years ago. It was the rule of the land for decades, but now more recently has been overturned. We are under the court composition of this day, the Dark Ages, not that of the Enlightenment. There is zero possibility the California courts would ever go along with this Sixth Circuit decision. And the Ninth Circuit has not proved to be a very hopeful place for us, but it is our only possibility.

                You simply got very lucky with the particular panel that handled the Sixth Circuit case — I would not be too presumptuous that even an en banc panel will not overturn that, we will see. I am pretty sure SCOTUS will overturn it — but I wish I were not so sure. But it should be fought to the bitter end anyway.

          • 72FLH

            you know what he means , so whats your story ? you think maybe we should sign up for more constitution loss , I never signed on for any of it , its way over do the we abolish this crime against citizens ,

      • Bobby

        David,

        I to live in michigan, and i have been on the registry since 1995, i have also been in contact with Ms Aukerman from the ACLU since day 1, i also have spoke with Mark Allen,her assistant, and another person as well,don’t remember her name though.

        Mariam, I spoke with her on Friday the 16th, and since dumb ass, AG, Bill Schuette, has asked the 6th circuit to reconsider their decision,she said to just be patient,and the chances of the 6th circuit judges reversing their own decision, is pretty slim to non-existent.

        I also do not sse this going to the US Supreme Court,but i have been wrong before.

  7. Brubaker

    Michigan’s own David M. …that really is nice to hear the influence and help. Thanks for communicating that.
    Michigan..! US 6th Circuit Appeals Court.

  8. James Townsend

    Janice I have always said that two wrongs don’t make a right. You know offenses do come but woe to him, through whom them come. Now we can talk about trespasses or we can talk about doctrines of men but in the end let God be true. Showing disrespect is just what all this is and we as humans can’t even image. This is a lesson for all to learn.

  9. mike r

    people wake-up…the key statement in this case besides the punishment issue which is EXTREMELY more important is the statements that there is no increase in public safety and no decrease in re-offense rates…a and that the law is absolutely useless…..I haven’t been able to read the entire decision yet but what I hear here is that they actually referenced or recognized the false facts that was used to justify these laws….forget the punishment issue it is time to abolish the current registration scheme and force the legislature to overhaul the entire registration scheme to include only those that can actually be proven through clear and convincing evidence standard to be some kind of threat to public safety….it’s time and the issue is ripe for SCOTUS

    • 72FLH

      over haul? try scrap ! Bro , its the job of the court to give time and punishment , not a bunch of jonny come latelys , and say well we feel your to big of a danger ! oh hell no , if they do a crime then they go to court and start from go , you know as well as I do Bro most of us never stoped being punished , their is danger to all that have to live in this manner , I respect what you say man , all I am doing is adding how I think about this matter ,

  10. Les Mis Life

    Big takeaway not mentioned is what a smart batch of cases this was to bring. How often have we seen these laws/precedents upheld by cases where the justices think, “these are exactly the people these laws are made for.”
    Now, because the system was attacked from the bottom up, the house of cards crumbled for all in the 6th circuit. Great day that’s been a long time coming!

  11. mike r

    yep it’s to bad because Frank Lindsey would make a perfect candidate for the abolition of the current registration scheme if only Janice’s team would argue it…

  12. O.A.L.

    With tears in my eyes, Janice, I thank you for supporting and believing in me. I hope you and your staff can feel the embrace I am giving all of you at this moment. Our lives have been made so difficult by those who don’t care, you give us all a feeling of hope.

    Thank you.

  13. Chris F

    While this is a great decision for those accused of crimes committed after 2006, it fell really short for everyone else and all future registrants.

    The lawsuit challenged the ex-post facto application that affected them since the plantiffs’ crimes were prior to 2006, as well as many other unconstitutional parts of registry that affect all registrants. Once the judges determined it did violate ex-post facto, they refused to address the rest of the issues since it didn’t apply now to these particular plaintiffs since they are mow free of the burden.

    It’s great that the judges acknowledge the other things are good arguments and registrants may have had their rights infringed on with SORNA, but bad that they didn’t use all of that evidence that was presented to extend their ruling to include that. The “statement of fact” that you can look at in the links is tons and tons of good evidence that is now wasted on a lack of rulings on all issues.

    See the complaint:
    *****
    Plaintiffs sued Michigan Governor Richard Snyder and Colonel Kriste Etue, the director
    Michigan’s state police (collectively, “Michigan”), challenging SORA’s validity on a number of
    different grounds, including that portions of SORA are unconstitutionally vague, that its
    requirements should not be construed as creating strict liability offenses, that SORA violates the
    right to free speech guaranteed by the First Amendment, and that it violates the Fourteenth
    Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel.
    Plaintiffs also contended that SORA’s retroactive application to them—specifically, the
    retroactive application of the amendments that went into effect starting in 2006 or later—
    amounts to an Ex Post Facto punishment prohibited by the Constitution.
    *****

    and see the final statement in the ruling:

    *****
    As we have explained, this case involves far more than an Ex Post Facto challenge. And
    as the district court’s detailed opinions make evident, Plaintiffs’ arguments on these other issues
    are far from frivolous and involve matters of great public importance. These questions, however,
    will have to wait for another day because none of the contested provisions may now be applied
    to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta.
    We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and
    remand for entry of judgment consistent with this opinion.

    (fyi – dicta = a statement of opinion considered authoritative (although not binding))

    • nomore

      The last part shows that he was signaling that the whole registry scheme as far back as Alaska’s initial registry policy was unconstitutional as far as he was concerned. He could only legally bind the law presently as it pertained to the plantiffs of the case.

      From the perspective of this case only and this judge, I find it powerful and potentially far reaching in its effects.

      I do however have some possible bad news but I’ll wait to see what the state does. If it goes to the supreme court, they’d better get their recidivism data ready for argument.

    • Bobby

      Chris,

      I’m from Michigan so ALLof this affects me greatly,since my conviction was in 1992 and i was put on the registry in 1995. The reason the 6th circuit,did not rule on the other issue’s is because the Federal District Judge Cleland,ruled that the other issue’s were vague and there for unconstitutional,but the ex pos facto did not violate the Constitution,but left it open for another court to rule on,hence the 6th circuit Court Ruling regarding the ex pos facto .

      • Chris F

        If the lower courts ruled in favor of the Sex Offender on those other issues, than why did the 6th court say the issues other than ex-post facto have to wait for another day since the ex-post facto meant all those other things no longer apply to these particular offenders?

        I really want to know about this one: “Fourteenth
        Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel.”

  14. Anonymous Nobody

    I note to readers (and Janice, if I’m wrong, please correct me), this opinion is saying that the entire registration regime together as it is imposed in Michigan is punishment. It then goes on to say that the amendments added in 2006 and 2011 cannot be applied retroactively, as they are punishment as included in registration too.

    No one is being released from registration under this ruling. But of course, I don’t think anyone in Michigan is subject to registration retroactively, as a lot are in California.

    As this pertains to California, the state’s registration law(s) goes all the way back to 1943 (or is it 1947); California was the first state to have registration, and the only state for many decades. By the time the Clinton administration made registration a national mandate in the mid-1990s, only two other states had imposed registration. Since then, California, too, started piling on the amendments — although it already had done a number of them over the decades, very key ones here being that those who got 1203.4 PC relief (expungement) could stop registering.

    That relief from registration via 1203.4 was lifted in the mid-1980s for felons, and in the early-mid-1990s for misdemeanants — and at least since the Clinton mandate and language added to 290 declaring it not to be punishment, that change has been applied retroactively to all those people who had met the standard to be relieved of registration and had been relieved — after years of no longer having to register, suddenly they had to start registering again and ever since and for the rest of their lives. What they had worked for, met the standard for and been granted was willy nilly taken away with the flick of a pen.

    If the reasoning in this Sixth District case were applied to the California registration regime, it seems it might bar retroactive enforcement of even the basic registration requirement for both felons and misdemeanants who had gotten 1203.4 relief prior to the state retroactively lifting that relief.

    This was something we tried to get partially in Doe v. Harris, but the Ninth Circuit sent that case to the California Supreme Court, which bent over backward, as it ALWAYS does, to come up with a lying excuse to shoot down Doe. That case was based on the state of the law at the time one enters a plea bargain.

    We can only hope SCOTUS does not shoot down this Sixth District opinion, or water it down so it does not hold that even basic registration is punishment within the rest of the Michigan law.

    On that point, I note there likely are added complications as applied to California. I don’t know how the Michigan law is written on the books, in a single statute or in many. This Sixth Circuit opinion speaks of it being punishment in consideration of the entire regime together, not on the basis of nothing but basic registration — I think Michigan must have it all under a single statute number.

    California used to have 290 as a single statue, that is why it is referenced as that. But about a decade ago, California split 290 up into a long list if different statute numbers — that makes it much more likely to salvage parts of it, and would require a different look at the specific 290 statute that imposes the basic registration requirement. As a separate statute, basic registration could be much more difficult to declare to be punishment, even if all other related statutes were — under this Sixth Circuit ruling, since that spoke of the entire regime together.

    California made the various parts effectively severable so the entire regime would not be endangered by a ruling against a single one of them — the state was fully aware it was adding amendments that might very well endanger the entirety of 290, so it separated them. So, for instance, if residency restrictions were held to be punishment so not applicable retroactively, that would not necessarily means registration itself could not be applied retroactively, as in California, they are different statutes. And it seems to me that SCOTUS has already ruled that registration is not punishment, so while it is deemed punishment under this Sixth District ruing because it is part of the total regime, in California, it separate.

    ADDENDUM: This Sixth District opinion also decried the approach Michigan takes of deciding tiers based simply on the offense, not on a review of each applicant individually. I have advocated our tier proposal nix such reviews, and instead base the tiers on the offense. But my proposal differs from Michigan’s approach, as I also say to include the possibility for anyone to apply for a lower tier and be reviewed for that — I do believe that would easily get around what this Sixth District opinion said about basing tiers on the offense rather than a review. I do not for a minute think this Sixth District opinion should be construed to justify a tier proposal in California that requires those reviews, they will only serve to put many people in a higher tier.

  15. mike r

    can’t wait to read this decision I seem to be having problems opening it on my phone….

  16. Agamemnon

    While lawmakers can argue the registry is “administrative,” the restrictive laws passed using said registry are anything but, and I for one applaud the sixth circuit for finally acknowledging this.

    • Anonymous Nobody

      The Sixth Circuit is not the first to rue on this issue. The California Supreme Court ruled way back in the 1970s that even the much lesser basic registration in effect then not only was punishment but such severe punishment as to rise to the level of unconstitutional cruel and unusual punishment, for when applied to lewd Conduct (which the Legislature later took out of 290). And later, in the 1980s, the appellate court extended that to indecent exposure, at least in may cases if not all – they never said whether it could apply to all cases — but the legislature never followed up to take indecent exposure out of 290, so it remains in there to this day.

      The previous case on lewd conduct used very similar arguments as in the Sixth Circuit opinion.

      It was later, under a different state high court composition, that those rulings were overturned as wrongly decided, and none of the collateral requirements added were either. They said it was no punishment of any sort whatsoever — in their opinion — and, get this, that it NEVER had been considered to be punishment.

      So, the most recent on the question by the California Supreme Court is that the arguments upheld in the Sixth Circuit opinion are wrong.

  17. mike r

    thats right no more they better have all the data to back their stance and argue this with precision and flawlessly…this is really good though since if this goes to SCOTUS and these attorneys are not competent enough to succeed than the court itself has left the possibility to challenges on the other issues…..I think these lower courts and even our own Supreme Court are encouraging a challenge on the real issues and are even doing what they can to give us ghe fodder we can use and keep the issues open until a successful challenge presents itself…I could be wrong but it sure appears that way to me….

  18. mike r

    why don’t we ever hear and nobody ever uses the 2008 Alaska decision I believe should basically overturn the 2003 decision in Smith….the 2008 case has actually been revisited in other cases in Alaska after the 2008 decision ( and was affirmed ) but I haven’t been or heard of it being used anywhere else…..dumbfounded again……here’s a link to an article I wasn’t able to open the pdf from my phone for some reason but it’s there…
    http://www.justiceflorida.com/alaska-supreme-court-declares-sex-offender-registration-law-unconstitutional/

    hopefully someone can explain to me why this case isn’t being used

    • Robert

      MikeR, Because it is a state case and only affects the State of Alaska. One state will not overturn SCOTUS, must go through the court of appeals first, we need rulings from circuit courts to get there.
      Watch the youtube video, it is all explained here:
      https://www.youtube.com/watch?v=9qyA9TU8nE8

  19. mike r

    thank you Robert great video and I’ve only had time to see the first couple of minutes so far…I’ll be watching the rest as soon as I can

  20. mike r

    I understand the process Robert I know that the Alaska case doesn’t officially overturn the SCOTUS decision but it is extremely good ammo that should be used and pointed out since Alaska is basically where all these new rules and regulations started and it’s the same state Supreme Court that is in direct conflict with the smith v doe case that originated in Alaska…it’s just that I hear so much surprise and focus on cases or states that are just now saying it’s punishment when we have several other courts such as Alaska that declared that years ago but we never hear about them…

    • Robert

      MikeR,
      The legal basis for SCOTUS in determining whether or not the Alaska Sex Offender Registration Act is nonpunitive, is Kennedy v. Mendoza-Martinez (1963) and not the Alaska case itself.

      Out of the 7 “Mendoza-Martinez factors from 1963, Smith in 2003 identified 5 that are relevant:
      (1) Does the law inflict what has been regarded in our history and traditions as
      punishment?
      (2) Does it impose an affirmative disability or restraint?
      (3) Does it promote the traditional aims of punishment?
      (4) Does it have a rational connection to a non-punitive purpose?
      (5) Is it excessive with respect to this purpose?

      It is the legal interpretation of these five factors that caused other courts (including the 2008 Alaska court) to reach different conclusions than SCOTUS since 2003.

      Remember that the question answered by SCOTUS in 2003 was if the intention was to impose a punishment or “civil proceedings”.

      If the intention was to punish, that ends the inquiry – registration is deemed punishment.

      If the intention was to enact a regulatory scheme that is civil and nonpunitive, the Court must examine whether the scheme is so punitive as to negate the State’s intention to deem it civil.

      SCOTUS used the 7 Mendoza-Martinez factors from 1963 to answer this question.

      All other significant state cases (and now 6th Circuit) used the same criteria- the Mendoza-Martinez factors, to determine that ex-post facto registration is punitive.

      In a nutshell, this is why proving punishment appears to be the “jenga” block to overturning many current registration laws at the SCOTUS level.

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