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CO: Judge Finds Colorado Sex Offender Registry Unconstitutional

A federal court judge in Denver has called the public sex offender registry in Colorado “cruel and unusual punishment.” Full Article

Also see:

Millard-v.-Rankin-13-cv-02406-Colorado

http://www.sfchronicle.com/news/crime/article/Judge-Colorado-sex-offender-registry-12166975.php

https://ijr.com/discuss/posts/964736/colorado-federal-judge-makes-head-turning-ruling-declares-sex-offender-registry-unconstitutional/

http://blogs.findlaw.com/tenth_circuit/2017/09/federal-court-finds-colorado-sex-offender-registry-unconstitutional.html

Join the discussion

  1. Matthew

    Wow, maybe we should all shift our focus to this. If a Federal judge is saying this, it could really branch out to the whole system. If the Supreme Court takes it on and sees the same, the registry is over.

    • AlexO

      Isn’t them not taking it the same thing as they’re simply saying they agree with this ruling and no need for further deliberation?

      • Matthew

        I have no idea! I am just shocked, 6 hours after I read that story. This could be huge. Like very huge especially being a federal judge.

      • Anonymous

        It was a Federal district court. If it is appealed ( most likely would be ) it heads to the 10th circuit court of appeals. If the 10th agrees or disagrees, the losing party can still appeal to SCOTUS. If SCOTUS denies it, it is agreeing to the ruling of the 10th circuit court of appeals. If they take the case, it would be to reverse it – whether the 10th agrees or disagrees.

        So let’s say, the 10th circuit agrees with this Federal court in our favor, if the opposing party ( the state) asks SCOTUS to weigh in and SCOTUS denies the requests , then the ruling out of the 10th circuit sets the precedent with the backing of SCOTUS. By denying the request, it agrees.

        You don’t want SCOTUS taking it if the 10th favors us, only if the 10th reverses the lower federal courts decision that you want SCOTUS taking it.

        I know it’s risky, but the Daredevil in me is hoping the 10th reverses that decision so then SCOTUS may want to have a crack at it once again and reverse it themselves in our favor making it law of the land in one nation wide stroke. The conservative and caustious me would want the former. Let the 10th set precedence and other courts follow similar to the Snyder case.

        I think if this ends up in SCOTUS in the long run, Justice Kennedy will opinion much more differently than he did with the Smith case 14 years ago. This thing has evolved into an uncontrollable monster biting chunks off the constitutional rights of people in all of that time frame.

        • TS

          The people of CO would rather it be left as it is today and not run the risk of the Tenth getting involved, but realize the CO AG has 60 days to act if they are going to attempt at getting them involved.

          What you are saying @anonymous is another potential MI case (Snyder) it sounds like

        • Anonymous

          If it is Snyder like, then all the better I would think. Why limit yourself to just Colorado when you can impact more states or even the entire nation. Even if this happens in my state and let’s say I won the case, I don’t have to register anymore. But it only stops at me or my state and nobody else can’t get off. Screw that ! This is much bigger than me. Use my ” won ” case to impact more courts and free much more people and destroy all these bad laws. We are all in this together – and that will make us win this war. Together.

        • TS

          @Anonymous

          I agree with your thinking, no doubt about it.

          If Snyder gets picked up, great, it could be applied nationwide possibly if upheld. If it does not get picked up, then Sixth Circuit keeps the “W” and those states win.

          If this gets picked up by the Tenth, then you have to do the same song and dance again to hope it prevails as it did this time. If it does, then SCOTUS would possibly be petitioned to hear it. Is this the case that SCOTUS wants to settle the matter?

          There are a lot of “IFs” going on….

        • Anonymous

          Indeed, but one thing is for certain is that the tides have been turning our way and at the Federal level as well ( way better than the last decade by far). I see this continuing to go our way because there is already so much info out there exploiting the ” BS myths ” and lime lighting the empirical evidence in all types of media media outlets as well as in case ” dicta” to make it hard to argue against and succeed as well. If the opposing forces only have the ” high recidivism rate myth ” as their only argument and weapon, then they’re going have something real special coming to them. It won’t be good( for them).
          It’s going be an interesting 2017-2018 and even perhaps 2019. That’s for sure.

        • AlexO

          But what if for whatever reason this doesn’t get appealed and just stays with this 9th circuit ruling? Does it have any impact nationally? Does a state federal judge only speak for that state or federal law in general?

          Even if it does get to the 10th, I have a hard time seeing the 10th reversing it considering the amount of evidence that it is indeed punitive with a lot repercussions because of it not even related to law (loss of employment simply due to the negative image, being technically barred from placed like Facebook (we have a ruling that legally we can’t be barred from FB and similar, but FB and many others have a non-legally binding clause that we’re not allowed and our accounts will be shut down without repercussion). It’s a total Animal Farm right now. We’re technically free citizens but with the registrations we’re certainly in the realm of “All animals are equal, but some animals are more equal than others.”

        • TS

          @AlexO

          If the Tenth declines to hear it should it be petitioned, or it not get petitioned to start with, then the three gents are the victors and get damages and atty fees awarded as noted. In addition, CO has to then decide what they are going to do because there is going to be a flood of potential lawsuits headed their way.

        • Happy, joyous and free

          A Federal judge speaks for the entire District to which his court belongs, not just the state where the court belongs. If a District only covers part of a state, it only applies to that part (many Eastern states have more than one District court). There are 89 districts over the 50 states.

          Colorado is not a 9th Circuit court. It belongs to the 10 Circuit, so it would be appealed to the 10th Circuit Court of Appeals. https://en.m.wikipedia.org/wiki/United_States_District_Court_for_the_District_of_Colorado

        • AlexO

          Thanks! So why did this go the the 9th if it’s a Colorado case?

        • TS

          @AlexO

          It did not go to the Ninth Circuit. US Fed District of CO was the court in which it was argued in.

        • AlexO

          Ah, gotcha. For some reason I thought it was the 9th.

        • Robert

          It will not be appealed. The state is smarter than that. They loose the 2 or 3 people who fought against it. The state will simply lick their wounds and go home. The state will get the public to forget about this loss through mass media manipulation. There is ABSOLUTELY no way in the world that they are going to risk the entire registry for a few people. If you really believe that, i have ocean front property in Arizona I would like to sell you.

          It is a dream for us all to have the registry taken away in one broad pen stroke, but that is all it is… a dream. The states make way too much $$$ from federal programs by having the registry in place. ABSOLUTELY no way they risk that for 3 people.

          The ONLY way this changes is for us to ALL rise up together under 1 class action (per state, preferably in a more liberal state so it has a chance to make it all the way up to SCOTUS) But will the court grant a class action status? Would it consider us (the registrants) a “class”? I don’t know. But the only real chance we have to make a DRAMATIC change is to come together and fight together (in a legal manner).

          I am happy for the 3 guys that won. But we are a LONG way away from a victory for us all. Sorry if I seem negative, I am just being honest and real with you.

        • Harry

          Bunch of us can write letters to CO AG and threaten of not voting for him, if he do not appeal. After all it is for the protection of children. We can not have these 3 living unsupervised. Seeks!

        • TS

          The AG is a her if you read the article

        • TS

          IF you read the discussion, a class action suit is not possible here and not advisable nor is facially challenging the situation.

        • AJ

          @Robert:
          I stridently disagree with you. CO will most certainly appeal, as these three gentlemen are a crack in the foundation of the SORA laws of the State. Their attorney herself says they were a test case to see how it could go, and she has many more like cases in waiting. As I’ve said before, every single one of these cases will get appealed as high as they can go because neither side will say, “uncle.” The State is adamant the laws are needed and constitutional; the RC is fighting for her/his rights.

          While the public may, as you say, forget about this case, the attorneys and legal system won’t. It is now legal precedent, to be used over and over and over by other RCs in CO. To stop that, the State *must* try to win on appeal. So what you say makes no sense.

          There’s an old line that says something is impossible…until it isn’t. It was impossible for Muniz to win, until he did. It was impossible for these three men to win, until they did. It was impossible for the Does in Snyder to win, until they did. Granted, none of these is over–for the exact reason I stated above–but the fact there are many judges, across wide geography and jurisdictions, who are ruling for RCs shows it is not impossible. Difficult perhaps, but possible.

  2. Chris F

    This is outstanding! I just mentioned this in general and I am glad the moderators are quick in getting these posted here.

    Can someone find the court papers on this? I really want to see the real filing and judge’s decision so we can figure out why it worked this time and hope people will file in other districts.

    Mike R has this challenge in his lawsuit and before he files it would be nice to see what this one had.

    • Final decision is shown above under opinion @Chris F

      Final decision is above under opinion in blue text within this article

      Initial article with info is here @Chris F
      https://narsol.org/2016/07/colorado-registration-statute-attack/

      • Moderator

        The opinion link was added after @Chris F’s comment.

        On an unrelated note, it would tickle us if the “user name” could be reflective of the user, and statements and addressees saved for the comment field. ***Moderator***

        • kind of living

          Moderator , That would be that would be very cool , that would be a huge statement

        • David Kennerly, Poster Boy For Whatever Pisses You Off

          For those of us in a state of continuous flux, that would be inconvenient. 🙂

          Names I agree with. Mission statements are a must.

    • TS

      @Chris F

      The filing(s) related to the case should be available via PACER online which houses all Federal filings.

  3. Leroy

    Seems that the pendulum has picked up some serious velocity our direction!!
    If Colorado can do it, maybe California can too.

  4. Nicholas Maietta

    Someone, please pinch me. This can’t be real.

    • James

      Fantastico!

      We need some good news, and this is Great news!

      Which is why I am more than a little ambivalent on SB-421…I haven’t written anything on this and maybe never will.

      Tomorrow will tell…but regardless, I will always love this Colorado Decision more than what happens in Sacramento tomorrow.

      Best Wishes, James

      • Jack

        This affects sb 421 greatly. Specifically about when it mentions Mr. Vega’s experience proving that even the theoretical ability to deregister can be illusory, page 29. Which we already knew from experience. That said, California’s crucial difference is the SARATSO test. Something that was lacking in all other parts of the country. No matter though. Once this gets to the Supreme Court, and Gorsuch is OUT, they don’t have a leg to stand on anymore. Stick a fork in the registry just like the Trump administration. It’s done.

        • Eric Knight

          Gorsuch would most probably rule in our favor. Only Roberts and possibly Alito and Kagen would be against this ruling. Roberts because Smith v. Doe is the only reason he’s ON the Supreme Court (RE: https://sosen.org/blog/2015/10/30/was-the-trigger-point-for-john-roberts-appointment-based-upon-smith-v-doe.html), Alito based upon his Packinham opinion (though not Thomas for other reasons), and Kagen for her earlier decisions prior to Supreme Court with regard to rape victims’ rights.

          In any case, Gorsuch ain’t going anywhere for 20 years or so.

        • Jack

          Nah. Gorsuch is just well… he’s really the worst. I can’t think for one minute he’d support anything that makes life beneficial for any of us. Todays’ conservatives, not from the Nixon administration like Mr. Matsch, are completely off the rails.

        • PJ

          Gorsuch is not the worst. He may well side on our behalf …you should read Gorsuch’s dissent in United States v. Nichols.

          Gorsuch strongly objected to how much regulatory power a federal statute — the Sex Offender Registration and Notification Act (SORNA) — gave to the Justice Department to apply its rules to those guilty of sex crimes predating the act’s enactment.

        • Follow the $

          Agree. Gorsuch may be right wing law and order type but his opinions and decisions show he is interested in the limited government principle and is for ensuring laws and regulations don’t trample the Constitution. IMHO it will greatly depend on how the cases are argued in lower court as to which constitutional rights are being run all over.

        • AJ

          A quote from Gorsuch in US v Nchols: “Beyond this matter of statutory interpretation, though, lies a constitutional question that deserves more notice. If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce. Yet, that’s precisely the arrangement the Sex Offender Registration and Notification Act purports to allow in this case and a great many more like it.”

          Obviously he’s no fan of the legislative branch creeping into the judicial. He’s also no fan of “legislating from the bench”: “Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.”

        • Bobby

          @Eric

          Why do you think Kagen ,would be against us, when Justice Kagen was the one who denied Michigan’s stay. during arguments anwhat not she was on our side.

    • G4Change

      LOL, Nicholas! “pinch me” was exactly what I was going to type. Then I saw you said it too. It’s exactly how I feel. FINALLY someone said it!!! FINALLY!!! “Cruel and unusual PUNISHMENT “. No, not a Price Club membership. PUNISHMENT!!!!!!!

  5. Jack

    Tenth circuit baby WHOOOOOOHOOOOO! Thank you Jesus. Oh sweet Korean Jesus thank you!

  6. Nondescript

    “magistrates put the burden on the plaintiff to show by a preponderance of the evidence that he was not likely to commit such an(other sex) offense”

    Yep. It is impossible to prove a negative. The burden is on the State to prove ones current dangerousness, not the individual to prove otherwise. This , I have always thought is the weakest link in the registry scheme. Is their creepy, trendy sex offender list in the beginning of its death throes?

  7. Bob

    Wow….just WOW!!!. I’ve always wondered when this day would come. It is here. Amazing!

  8. Gralphr

    This is simply amazing! Here in Indiana we can petition to get off the registry 10 years after having been out of prison and off parole/probation. I would think this can be added into said petition or at least mentioned in the argument as to why one should be allowed off the registry. It’s impossible to say someone wont commit a crime since another crime hasn’t been committed. For the government to even use that type of logic to get off the registry is idiotic. Its one thing to be on the registry, but the truth is my wife and kids are affected by it as well everyday. Its not easy telling or getting your 7 year old daughter to understand you cant go to open house at her school or other programs there or your son you cant go watch his football game due to an incident almost 20 years ago. Then your wife pointing out homes that would be nice to buy, but you having to remind her that due to the registry, it may not be the best place in order to save the children from nosy neighbors scrutiny due to something outside their control.

  9. Chris F

    Thanks Moderators for posting so quickly and getting the opinion added.

    I finished reading the judges opinion, and it is GROUNDBREAKING!

    It isn’t mentioned in the article headline for some reason, but they also concluded registration VIOLATES SUBSTANTIVE DUE PROCESS for all 3 plaintiffs! It’s not just Cruel and Unusual Punishment that was determined to make it unconstitutional.

    The judge correctly sites all of the recent decisions and opinions in cases like Packingham and Snider.

    Mike R will need to adjust both his Cruel and Unusual and Substantive Due Process claims to include all of the case references and new quotes from this judge.

    Something that may not pertain to Mike R since his internet identifier isn’t required, but for others that want to challenge the registry, would be to bolster the judge’s use of Packingham by also pointing out that Facebook and Nextdoor (the two most influential TOWN SQUARES of the modern world) deny access to those labelled “sex offender” not only because of the public disclosure of the information, but also because the government purposely sends the internet identifiers to Facebook.

    The dominoes are starting to fall quickly now. Let’s just hope any more challenges that make it to SCOTUS are argued well and point out ALL of the negatives of registration so the Justice’s can’t hide behind ignorance and just pass things off as “collateral consequences” of committing a crime.

    • Chris F

      Of course, and yes I am replying to myself, this could get overturned because you know they will appeal it to the 10th circuit court of appeals. On one side, it will be tough to overturn because the judge makes very clear and convincing arguments for his decision. On the other, and I don’t know the history of the 10ths decisions, they could also just ignore all the arguments and site the lame reasoning in other cases that shot down registrants.

      I think either way it is the type of case to get SCOTUS attention. With it’s many references to recent SCOTUS decisions and also a reference to Kennedy changing his opinion on how the internet affects registrants since the 2003 Smith V Doe case, I think it will peak their interest. The only thing I am not sure of, is how the case being specific to just the plaintiffs and not all registrants affects things. Can, or would, SCOTUS make a decision that affects more than just these plaintiffs? Even if it does affect just these plaintiffs, wouldn’t their opinion set precedent on anyone in a similar situation?

      • TS

        @Chris F

        Start the sand through the hour glass for 60 days from yesterday for that is the window of time the CO AG has to do their next step.

        “As the sands through the hourglass go the days of our lives”

      • Lovecraft

        Another thing that would happen if the 10th circuit decides against the district courts judgement in this case is it would finally create the rift in opinions scotus looks for when deciding to hear a case. (Assuming snyder and the Muniz get denied based on the fact both came to the same conclusion and generally speaking scotus doesnt like to stir things up unless there is a difference in opinion) The way I see it either way this is a major victory. If its upheld by the 10th awesome, if not it will almost certainly force a showdown scotus style. The Packingham win pales in comparison to this and its in the same calendar year, its almost unbelievable.

      • Happy, joyous and free

        Just a note: Appellate Courts only deal with problems in how the case was handled at the District Court level. So, they are NOT rehearing the entire case. They can only determine if errors were made in how the case was handled or if the District Court judge was totally off base in how the judgement was reached.

  10. pgm111

    This is very welcome news. We should tear through this case and decision carefully and construct a similar attack to be filed in every circuit in the U.S.

  11. MatthewLL

    OMG!

  12. wonderin

    “I think we always need to keep in mind that victim’s should have rights too. The victims didn’t choose to have this happen to them. Offenders made a choice to commit a crime and THIS IS PART OF THE PUNISHMENT,” Franklin said.

    • guest

      EVERY criminal made the choice to commit a crime. 65 million Americans have a criminal record. NO crime victim made the choice to have this happen to them. Why don’t those victims have the same rights, too? Why are not ALL criminals subject to the SAME punishment?

      • TS

        NO! You are wrong! Not every criminal chose to commit a crime. If you are under the influence of medication that poisons the person who in the end does something without their knowledge or understanding, the crime committed has no mens rea behind it. Medications can do funky stuff to people who consume them at the direction of their medical professional.

        • guest

          Riiiight……..

          “Sorry, your honor, I was under the influence of alcohol / hopped up on drugs when I committed this crime. Therefore I could not have formed mens rea. No, wait, I was under the influence of prescription drugs prescribed to me by my doctor. Therefore I was unable to form mens rea” — “Right you are! Case dismissed, defendant is free to go”.

          You’re kidding – right?

        • TS

          @guest

          No, not kidding. Look up cases where Ambien was a factor in a person doing something they were not aware of doing, e.g. sleep driving, when they were pulled over for DUI. It happens and they are acquitted. It is more common than you are giving credit for. I know of two cases back east off the top of my head where one was acquitted and the other was overturned at the state supreme court level, both related to Ambien prescribed.

          There are cases where the defense like that does not work either, e.g. the guy who killed his wife after he consumed sleep meds.

          So it goes both ways in courts.

          Why do you think there are MMJ cases now where medically speaking they are having a hard time knowing where to draw the line related to it?

          As for other items, e.g. alcohol or recreational drugs, that won’t fly because you have the mens rea to consume them and then have to trust you don’t do something stupid.

        • Timmr

          So what, I chose to commit a crime. Now it is 18 years later and my probation ended in 2005. The victim chose not to be a victim anymore and forgave me. I lost my secure job and learn to make another. I went through a lot of fearful nights. It made me, among other factors’ not want to commit the crime again. Hooray, that is what punishment was supposed to do! There were mitigating circumstances that gave me a second chance. They are not excuses, but items I needed to change. That is done. What reason would I want to be a lifelong criminal?
          Why do I have to be punished for life at the word of some victim of some other’s crime? What logic is there to that than to create an avenue for some to enjoy revenge by osmosis and for others to tag their political careers to it.

        • PK

          “in the end does something without their knowledge or understanding”
          Like an individual who was months away from being legal, but yet who lied about their age, and was really a minor.

      • AJ

        @guest:
        “EVERY criminal made the choice to commit a crime.”
        Have you ever done something you regretted or have you ever hurt someone, whether mentally, emotionally, or physically? Ever bent or broken any rules? Anything at all? Stole gum from the store? Cheated on a test? Exceeded the speed limit? I suspect yes, so really what’s at issue is the severity of that regret and/or harm. Thank your lucky stars that you haven’t (I assume) been raised in a broken household, or were not abused as a child, or haven’t suffered any number of possible attachment injuries.
        “Why don’t those victims have the same rights, too?”
        What rights don’t victims have? More pointedly, what rights do convicted people have that victims don’t? Or maybe you would prefer the Constitution not give people those pesky rights. The rights are there to protect the attacked and disfavored; those wielding the power don’t need them, as they can change things to whatever fits their desire and need.

        “Why are not ALL criminals subject to the SAME punishment?”
        What the heck is this supposed to mean? So a shoplifter, a wife beater (assault), and a murderer should get the same punishment? What would you want that punishment to be? Once again, those pesky rights prevent such a thing. RCs would *love* to be subject to the same punishment as other criminals, i.e. no registry.

        • kind of living

          @ AJ >>> your comment and Chris F ,,,, might be over the head of Registry minded folks , , cant wait to read the rest of the comments ,these are points that need to be heard over and over ! rather than finger pointers minimizing their own mistakes by using the top tier as a blunt object in battle for their private brand of freedom , only to leave the object on the battle field . all the same trying to stay on “subject matter” at hand , , Great Comments and points , as pesky as that may seem to some

        • kind of living

          @AJ some or that Comment was about other subject matter , sorry about that , I was just pointing out that yours as well as Chris F’s comment is a good argument against other issues like tier systems , like I said sorry , I just read the comments and said to myself hell yes , why would we ask for more unconstitutional garbage , “any who” that’s what was going on in my silly ass head when making a comment to your statements lol sorry!

        • Civil rights first

          @AJ
          I think he/she was meaning if we have to register on some public registry why not make every criminal register on a registry…. The argument that was pointed out was if they are saying victims of a sex offense have a right and need to know then why isn’t there a registry for every crime when there are victims of those to..
          Just my two cents for what it’s worth…

          But on this…. Are we finally seeing the light at the end of the tunnel?

      • norman

        What about those of us that have no victim. No victim restitution paid. Do we deserve to be on this public shaming and discrimination register for life?

    • Chris F

      Big “no-no” there!

      Since Legislature can’t punish, retro-actively or otherwise, the registry can’t survive if it is punishment. It isn’t a part of your adjudicated sentence because a judge had to impose it instead of being able to consider the circumstances and tailor it to the crime and person. Lots of Constitutional violations now….Separation of Powers, Bills of Attainder, Equal Protection, Substantive Due Process, Procedural Due Process, Cruel and Unusual Punishment, and numerous other clauses come into play to varying degrees once it appears legislation is inflicting a punishment on a named, hated, and politically powerless class even though we are not a “protected” class.

    • Eric Knight

      And Mr. Frankly forgot to read Kennedy’s opinion in Smith v. Doe: ” In a(n) …opinion delivered by Justice Anthony M. Kennedy, the Court held that the Alaska Sex Offender Registration Act’s retroactive application does not violate the Ex Post Facto Clause because the act is nonpunitive(!!!)” Can’t pick and choose, Mr. Attorney.

    • New Person

      This quote should be a part of added proof on the “intent” of the registry.

      ============
      “I think we always need to keep in mind that victim’s should have rights too. The victims didn’t choose to have this happen to them. Offenders made a choice to commit a crime and THIS IS PART OF THE PUNISHMENT,” Franklin said.
      ============

      Clearly the intent has crossed the threshold of just being regulatory and into the realm of punishment. The more officials and advocate groups citing registration is part of the punishment is the laymen’s view that the registry is punishment, since intent is the pinnacle of the registry.

  13. nk

    “The judge found the posting of sex offender information to be a violation of two different amendments. The suit asked only for the three offenders’ information to be removed. It was not filed as a class action.”

    Could this be filed as a Class action?

    • TS

      Good question, but this needs to play out first. Depending on the action will determine what the course will be.

    • Eric Knight

      It depends on whether the appeal is submitted and accepted. If not submitted, or if submitted but not accepted, then of course file bigly.

    • AlexO

      Would it need to be filed as a class action if it’s upheld? I mean, it sounds like his ruling was a general one for what the registration does rather than something specific to these people. It’s not like it can’t be constitutional for them but okay for the guy behind them.

      • TS

        Class action is not the way to go here. You can read over at NARSOL the discussion on class action and it is not something you want to do here, e.g. a facially challenged court case in other words.

  14. Eric

    This is where we need to go. We have been hoping for an unconstitutional tiered registry that will be a little less punitive for a few, but that is wrong. The entire tiered system and any registry is unconstitutional. Every crime should be dealt with individually. My actions and punishment cannot be based on the hysterical fear of the populace over what someone else might have done at sometime in the past.

  15. New Person

    I’m still in shock. Truly. Shock.

    If Snyder does get picked up, maybe the justice who had that parenthetical quote about service to the state continuing past their custody could also now cite this case? (I still have to read it.)

  16. Eric

    This federal judge just opened the flood gates of justice and fairness. God Bless him.

  17. steve

    God Bless her!!!!

    “Ruttenberg said that faulty research claimed that sex offenders have a high recidivism rate when the opposite is true. She said only 5 percent of convicted sex offenders are arrested for new crimes.”

    “I would characterize this as a landmark case. My goal eventually is to get rid of this sex offender registration altogether, at least as it applies to a public registry that people can pull up on a website,” Ruttenberg said Friday. “I would be surprised if the state doesn’t appeal the decision.” -attorney Alison Ruttenberg, the attorney for the three plaintiffs.

    Link to article

    http://www.denverpost.com/2017/09/01/colorado-sex-offender-registration-act-unconstitutional/

    • AlexO

      Good article except for this part:

      “U.S. District Court Judge Richard Matsch ruled Thursday in the case of three offenders who want to remove their information from the registry, the latest example of courts limiting states’ efforts to keep track of offenders.”

      It makes it sound combative, like, “oh look how facts and law is getting in the way of the state doing what it wants!”

      • Michael

        Clear bias on the part of the “reporter.” He doesn’t have all the facts. The courts are not limiting efforts to track offenders. I don’t know of any state where the courts have outright banned the registries. Courts have limited who they can track and/or how long they can track, but have never limited the effort to track registered offenders. Not being able to track everyone forever is not limiting any efforts.

        ….

    • TS

      Comments on the Denver Post website are really rolling now on it!! Do what you can to add to them!

  18. New Person

    So I finally read the whole thing once. It was amazing how they tore through the 7 factors of MM determining regulatory vs punitive and finding 6 out of 7 were punitive. The Snyder case being cited just shows how relevant that case can be used in other states.

    So I’ll be going off on a tangent here. This case states that the registry is the lack of privacy. Also, denotes Due Process, or there lack of.

    1. Privacy issues. (Ca. Const. Art 1, Sec 1) —————-
    In Ca, its own state constitution protects the right to pursue and obtain privacy. In fact, it is an inalienby right! With that stated, there should never be a lifetime registry because it inherently depicts a loss of privacy for life. This means no way to pursue and obtain privacy. Why are we not using the California Constitution to fight the California Registry? Registration is a privacy issue!

    Currently, all registrants in California are subject to “lifetime registration”. In the proposed bill, only Tier 3s are subject to “lifetime registration”.

    It boggles my mind that we don’t use the California Constitution to refute the California Registry.

    2. Due Process. {Ca Const. Art 1, Sec 7 (a and b)} ——————
    What more burden of proof does one need to be de-register? That’s what Mr. Vega’s complaint was and was denied.

    In California, if one has earned the 1203.4 (case dismissal), then it is implied you are rehabilitated and are restored your rights due to your conviction. Somehow, this was denied to registrants as there was no hearing to state you are still a danger at the court hearing for earning the 1203.4. This is similar to Mr. Vega’s situation of completing everything asked and still are denied to de-register.

    Yet the California Constitution goes further in protections of due process. In subsection (b) of Section 7, it states the following:
    ==================
    (b) A citizen or class of citizens may not be granted privileges
    or immunities not granted on the same terms to all citizens.
    ==================

    There are some convicts who cannot qualify for the 1203.4. Fine. But all those who do qualify should share the same immunity. Therein lies the problem with registrants. They are excluded from the immunity of all penalties and disabilities resulting from the offense that others who qualify do receive from 1203.4. In-person registration has already been deemed a disability.

    .
    .
    I just find it irksome that other states are using their state constitutions to refute the registry and California is not when its state constitution provides stronger protections for registrants!

    I want to hear legislators tell all Californians that the California Constitution is wrong. If not, then why are they not abiding by it.

  19. JAB

    Attention Miss Victims right advocate in this story, EVERYONE has rights! And no, just because you did the crime, supposedly, because there are some people that have been wrongly accused and convicted thank you very much, your attitude that if you did the crime then you have to except the punishment it. No there was no registry on the Internet that ruined peoples lives and lost them their jobs and homes before 2006. So no it does not fit the crime sweetheart. You do not get to plead to a crime back in the 90s and then decide later 20 years later OK let’s go ahead and plaster your face on the Internet. That was really ignorant and really really low on your part. That’s exactly why society gets away with putting people on this registry after the fact because of the mentality of people like you.

    • PK

      Is this Miss Thing a Commenter on the Denver article? I would be happy to Chime in.

  20. New Person

    Traits of probation and parole.

    I like how this court addressed it. They stated that you are still being monitored because of your yearly registration. If anything changes, then you must go back into the police department and re-register.

    In my official letter from San Bernardino County, it states:
    =================
    Please keep in mind for any changes in address, employment, or vehicle updates in the future will also require an appointment.
    =================

    The county is monitoring my vehicle and employment. There is no other explanation for wanting such information other than to monitor. That is a probationary/parole trait.

    Next, compliance checks to housing. This was specifically addressed in this case. Welp, cops do come around to do compliance check at least once a year for some of us in California. This still is a form of monitoring. The fact the cops do come in their uniform and cop cars does bring alarm to the neighborhood. Instead of coming around once a month for probation/parole, the cops in their uniform and cop cars come around once a year.

    Can California simply copy and paste all of Colorado’s work and fight the registry here?

  21. Michael

    “While it might feel safer to have a registry and know where those sex offenders are, those are only offenders who have been caught and convicted and are required to be on the registry. There are still a lot of other sex offenders out there we don’t know about … Sometimes there’s a sense of false safety of being able to go out on a website and say, ‘now I know where everybody is.’ When in fact we don’t know where everybody is.”

    Because I don’t see bearded ladies roaming the streets does not mean there are a lot of bearded ladies.

    People really need to start calling beguilers like Brie Franklin out on the facts. Are there people who have comitted crimes and haven’t been caught? Undoubtedly. There isn’t a registry for most of them. Facts is facts. Most victims of sexual offneses know their abuser.

    “Offenders made a choice to commit a crime and this is part of that punishment.”

    That’s something Brie Franklin was telling the truth about. Sexual offender registries are punishment, which make them uncomstitutional. If she had half a brain she’d know that and would lie about that too.

    ….

    • AlexO

      It’s like that “Bad guy” support group scene in Wrecked Ralph, “yYou are bad guy, but this does not mean you are ‘bad'”.

      So it’s like, “It’s punishment but it’s not ‘punishment’ when it comes to the law” ie Regulatory

    • TS

      @Michael

      She as to say this to justify her job at the current moment and continue to stir up fear and hysteria for job security.

  22. Jack

    It just occurred to me too, that since Colorado’s people can use this ruling to defend themselves against a failure to register charge, they will. So she can do nothing, and let the registry gradually die out on its own (IE nobody being on it) or she can just try to take it to the 10th circuit and lose. Now that is what I call having your tit in a wringer.

  23. American Detained in America

    THIS is a far better thing for us than a tiered registry could have ever been! The more this happens, the closer we come for the registry disappearing for good!

  24. AJ

    @mike r:
    Yeah, using this case as source and citation, a C&U argument may well have some legs. I really like that this judge took the C&U well beyond punishment coming directly from the Government, instead including the peripheral and ripple effects the government fosters and abets through non-governmental entities (private citizens, websites). (Essentially, the Government is “contracting out” some of the punishment to vigilantes and h0mefacts.) I also like that the judge understands how things have significantly changed from Smith, where Kennedy said the activity required to do an internet search was essentially the old paper process streamlined and made electronic, to the push (passive) notifications we now have. I think both of these are key to any C&U argument made.

    I think someone in the 10th could take this declarative relief, supply the requisite information for items (2) through (4) the judge mentions, and get injunctive relief. Personally, I say the judge’s statements in his opinion give the necessary arguments to fulfill these items.

    As I’ve said before about other RC/ML cases, this one will be appealed as far as possible, because neither side is willing to accept a loss. The State won’t give in because it’s so entrenched in its position that the laws are civil and needed for public safety; the RCs won’t give in because they are fighting for their constitutional rights. What I foresee happening over the course of the next few months is: 1.) SCOTUS accepts Snyder in their Sep 25 conference (I feel this is guaranteed, given Ginsburg and Breyer dissented in Smith, Sotomayor is of similar bent as them, and Kennedy has apparently seen the light.); 2) PA petitions SCOTUS re: Muniz, prior to Oct 18; 3) SCOTUS accepts Muniz*, and rolls it into Snyder**; 4) SCOTUS rules (6-3 or higher) for us, with Kennedy writing the Opinion, and rules broadly enough to strike down the existing registries across the board, citing real data, not the stuff from Smith. They could do this quite easily simply by ruling that each and every RC must receive due process through individualized risk assessment. This would still give the Government the ability to restrict RCs who have been found truly to be risks, and would also place that judgment back in the hands of…judges, of all people! It would also mean anyone traveling or moving would not have to worry about the matrix of whatever RC laws exist across the land: Full Faith and Credit and/or Double Jeopardy would apply. Legislatures could still try to dream up whatever “for the children” laws they want, but the laws would have to survive intermediate or strict scrutiny (i.e. burden falls on the Government, not on the citizen).

    * I’m now of the mind SCOTUS will not issue a Stay in Muniz, as it doesn’t and cannot change a thing due to the state-level ruling by PASC.
    **The drawback to Muniz being rolled into Snyder is that it adds delay, as oral arguments would be pushed back to give the Muniz parties and amici sufficient time to file briefs (and supplementals?).

    • lovewillprevail

      Mike, in addition to what AJ says, do not do a facially challenge to the laws so if a judge throws out your case, it leaves the door open for others to sue. You will need to show how all the laws violated “your” constitutional rights. Read the comments at NARSOL from the NARSOL moderator in the comments section under the article concerning this issue. You will also have a better chance at winning if you focus on not how all the laws are unconstitutional and should be void, but how the unconstitutional laws effect you. That is what was done in this CO case. Just read the comments at NARSOL. Even if this means you need to make changes to your petition. You need to increase your chance of winning. And if you win, and I hope you do, then others can use your judge’s opinion as precedent to do the same.

  25. Restore the Constitution

    Finally, a judge who loves our inspired Constitution more than he fears the rabid masses.

    How could the life-long punishment of the Registry ever have been deemed constitutional; depriving us of the right to own property, to obtain employment, to live with our families or to travel. When the dust settles, and the Registry has been laid on the rag pile of history… The brave few freedom fighters like Janice and Judge Matsch will be lauded and the US will have yet another black eye to be studied like Salem. Why can’t we learn from history? The Registry monster formed by calculating politicians with the approval of misinformed voters and opportunists has made 5,000,000 (registrants and their families) unable to have life, liberty or the pursuit of happiness.

    Twain commented on a similar quandary as it related to debtors prison, “The fact that man invented imprisonment for debt, proves that man is an idiot, & also that he is utterly vile & malignant. How can imprisonment pay a debt? Was the idea of it to pay the creditor in revenge?”
    How can Registered Citizens contribute to society when the Registry prohibits them from doing so? Maybe soon, we’ll be solely Citizens… We should all pray for those like Judge Matsch, Janice and other Justices yet to show courage and love for the basis of our nation.

  26. New Person

    NPS,

    I think this case can pertain to you about your loss of job due to being on the registry, especially since you have that affirmation as evidence after dutifully working for 7 years without conflict.

    • NPS

      Actually, I only worked at this last job for 1.5 years. I’ve been on the registry for 7 years.

      The previous job I held was in the same field. I was there for almost 5 years and they were aware of my status and fully supportive. I only left for economic reasons.

      I don’t know how much this case would help since I live in the San Francisco Bay Area. The only thing helpful is 290.46 regarding employment and that San Francisco has a law that bars employers from denying employment to people with a criminal record. I have an expunged record. I’ve already reported her business to the city.

      I’m having a tough time finding a lawyer for wrongful termination. No one seems to get back to my inquiries.

      • AlexO

        We’re you directly told you were being released due to your registration? And did you have a contract? If no, then I’m not sure you have a case, even if you know the actual reason for release, as California is an at-will employer state. Without a contract they can just release for whatever reason. Likewise with tenancy. If you don’t have a lease, the landlord can simply give you a 60 day notice. That’s what happened to me. I was a perfect tenant for over 20 years and then I got a notice in the same month I had a a whole swat roll up for a compliance check. Called a lawyer and found out I had nothing.

        • NPS

          Yes I was directly told that I was being terminated due to my status which was stated in an email.

          CA is an at will state meaning they don’t have to give you a reason, but if they do give you a reason, it has to comply with fair employment standards. In CA , the registry cannot be used as a reason to fire you. In SF, having a criminal record (and mine is expunged) cannot be a reason to terminate employment.

        • AJ

          @NPS:
          I posted this previously in the Gen Comments section, but maybe you overlooked it.

          Check out: https://quirkyemploymentquestions.com/discharge/firing-a-registered-sex-offender-quirky-question-51/. It specifically addresses CA law regarding termination of a RC because of his/her being an RC.

          From the link: “If your line of business does not involve direct involvement with children that would qualify as ‘person at risk,’ think twice about using information obtained from [ML] websites in employment decisions.” It goes on to mention the company possibly being on the hook for damages up to $25,000.

        • AlexO

          $25k… They need to add a zero to that. That’s not going to get you anything in California.

      • Nondescript

        @NPS. I don’t think it matters if California is an “at will” State. No employer can fire a worker solely because they belong to a class if it is protected class.
        You need to file a claim with the ( DFEH) California Department of Fair Employment and Housing. Having been employed in SF gives you an even better standing because it broadens the categories that make it illegal to discriminate against.
        You have1 year to file a claim. They have a 1-800 number . They can put heavy fines on employers and redress the wrong. I would also persue legal action for lost wages, benefits etc.

        • AlexO

          RC are not a protected class, but it sounds like it doesn’t matter as it has its own set of rules to somewhat protect us.

  27. Chris F

    Does someone know where to find the lawyer’s original filing and any arguments that are oral or written so that we can see how the judge was convinced it was punitive, cruel and unusual, and violating Substantive Due Process?

    The judge’s ruling has great quotes and references, but I would love to see what got us there.

  28. Eric Knight

    Interesting tidbit about Judge Matsch. He was born in 1930, which makes him 86 or 87 years old. He was appointed by Richard Nixon in 1974, and most of his career has been considered a “tough but fair judge.” He was the judge of record for the Timothy McVeigh case, and adjudicated his conviction and upheld his death sentence in 2001.

    For him to come up with a clear and concise ruling on the obvious merits of Constitutional law is refreshing, and hopefully other justices will see the light of day with his ruling. Alison Ruttenburg deserves every plaudit for engineering a rock-solid case with the greatest implementation of Stung’s Second Postulate (“The more effectively that true recidivism rates of registrants are presented in court, the more likely the case will be decided in favor of registrants.”) that I’ve seen this side of Janice Bellucci and Chance Oberstein.

    Everything can be summed up in Matsch’s money quote from his opinion:

    “The fear that pervades the public reaction to sex offenses – particularly as to children – generates reactions that are cruel and in disregard of any objective assessment of the individual’s actual proclivity to commit new sex offenses. The failure to make any individual assessment is a fundamental flaw in the system.”

    • AJ

      @Eric Knight:
      Yeah, Matsch has a really good legal pedigree, and I expect he’s not only well known throughout the judiciary, but well respected. I’m guessing his decision will make more than a few judges ponder things a bit.

      He obviously likes being a Federal judge, having been there for 40+ years. I wonder why he’s never moved higher in the judicial chain of command. I have to believe he’s been offered, but has declined. Curious, but of little consequence.

      • AlexO

        Maybe he wanted to stay closer to the people and cases just like this. If he was on SCOTUS, he’d only see a fraction of cases, and cases like this may have never reached him because other judges in lower courts would rule against it. It’s like a good doctor that wants to remain a patient doctor rather than becoming some board bureaucrat.

      • Happy, joyous and free

        Many District Court judges spend their entire career at the District level. Becoming an Appellate judge requires going back to Congress for hearings, and all Federal District and Appellate judges are judges for life. They are not elected, they can only be impeached out of office. I used to be a Federal court employee a long time ago, but you can find this out by a wiki search.

      • AJ

        @AlexO & HJ&F:
        I’m not dissing Matsch at all, I’m just wondering how and why such a quality jurist would still be at the District level. It can’t really be a location issue, as the job is in Denver either way. I suspect it being more along what AlexO says in comparing it to a good doctor: likes to be involved with people and their cases, not merely reviewing other judges’ judgments (which is all the Courts of Appeals and SCOTUS do). It’s definitely more community involved….and less of that bureaucratic junk such as the congressional involvement and such that HJ&F mentions.

        Thanks to you both for your thoughts and opinions!

        • Happy, joyous and free

          AJ, I actually think Matsch is a pretty decent judge. I did not think you were dissing me at all. All I can say is that there is not a lot of upward mobility in the Federal judiciary at times. I saw very few Appellate judges retire. Think of it this way, you become an Appellate judge at 50. You have more than 10 years before you retire out. It is very slow process for a seat to open up. I knew every single Federal District judge when I was a court employee. I knew which President appointed them. We had District judges die or retire before any Appellate seats opened up. Many if the judges that I knew were more than able to be good Appellate judges. There is truth to what you say about not wanting the job change.

        • AJ

          @HJ&F:
          You misread. As I said, I was not dissing Matsch…nor you or AlexO for that matter! 🙂 I think he is probably a pretty d@mn good judge, based on what I read about the guy. I can see how the ability for promotion could move slowly, glacially so, even. Thank you for providing first-hand insight.

  29. mot

    OK, so how can we in Calif go about getting our registry rules as unconstitutional? If there is a cost and each RSO donates $5 what lawyer would take the case of see if we can get the CO results?

    • David

      @ Mot: I believe the CO court’s ruling included damages for the paintiffs. So if damages are possible, maybe an attorney would take it as a class action on contingency. Who knows?

      • lovewillprevail

        Do not do a class action. See conversations by moderator at NAROSL.

      • AJ

        @David:
        Damages awarded were limited to reimbursement of attorney’s fees. “Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs.”

  30. mike r

    AJ…Chris, because I like you..LMAO… I think you like doing this shi..just as much as I do….I really do enjoy it when we collaborate together and come together with great arguments and consensus….Hey, how about that???Cruel and Unusual huh????I think someone in our group thought of this argument too…I was questioning myself after you guys stated I should lose that argument, so much that I removed it from my motion…I haven’t read the decision completely or the briefs AJ provided, but they are downloaded and I might have to rethink adding CaU back in there. I don’t know yet..If I do I am sure I can downsize it and maybe make it short and sweet with the new info…Damnnnn it, just when I thought I was ready to file….

    • AJ

      @mike r:
      ” I think you like doing this shi..just as much as I do.”
      Is it that transparent? 🙂 Actually, I did consider going to law school, focusing on Constitutional Law (CL), but then went a much different direction for a career. My career has worked out quite fine, but I still have that CL interest in me.

    • Chris F (@Mike R)

      Yes, with this win you should add it back and quote and reference the heck out of it. 🙂

      The reason for taking it out was that it’s been so easily shot down before. After seeing what non sex offender cases have won in the past claiming cruel and unusual, it looked like very little was winning at all with that.

      Another way to look at it is that most people just choose a couple Constitutional violation to focus on, and if a judge thinks another one fits better than the ones you’ve chosen, he can’t use it but may find a way to declare a violation on one of the few you chose to fight. If you leave off C&U, you may still win with a few of your other challenges but now that there is a precedent with C&U so it’s needed.

  31. Illinois Contact

    Here’s a chance to ask questions and get clarification of the Colorado case directly from the attorney who won!

    This month’s NARSOL In Action will focus on the federal judge’s decision regarding Colorado’s Sex Offender Registration Scheme. The guest will be Alison Ruttenberg, the attorney who handled this complex litigation.

    Wednesday September 6th @ 6:30 Eastern Time

    You are asked to sign up in advance at this link so they have an idea how many will be on the call.

    https://nationalrsol.wildapricot.org/event-2653961

    The number to call on Wednesday is 641 715-3660 followed by 957605#

    • Chris F

      I wont be able to call in, but if someone could ask this question and post the answer it would be most appreciated:

      Question: Since it is the specific job of the judiciary to punish, rehabilitate, and protect the public during the fair sentencing portion of a trial, and they must tailor that to the individual and not the crime, couldn’t the registry, duration on the registry, and all of the restrictions stemming from it justify a challenge to Separation of Powers since legislature its stepping all over the judiciary’s primary functions and isn’t even bound by the judiciary’s rules that ensure fairness?

      • Lovecraft

        Chris, excellent question and one I have also pondered. I will be on the call and Ill relay the question.

        • Lovecraft (@Chris F)

          I sent the question to Robin. (hes on the board at narsol) He texted me and said he would taken care of it, so everything should be good.

      • TS

        @Chris F

        Send that question to NARSOL via the contact tab and they will be able to get it to her for answering. That would be the easiest way to ensure it is addressed most likely.

        • Chris F

          Thanks, I did that, but in case they don’t I hope someone will have my question handy. 🙂

          It really confuses me how nobody has ever included it as a part of a lawsuit that I’ve seen, and I’ve read dozens.

          It’s much more clear cut a case of legislature not only interfering with the judiciary, but over-riding their duties completely. It is more blatant than the “mandatory minimum” laws that were shot down and turned into “recommendations”.

          As pointed out in Mike R’s suit, if it’s ok for any city legislation to add laws and restrictions against people just because of a past conviction or plea of no contest, even deferred cases, then they can do that for all crimes like DUI, drug, fraud, etc. Imagine if everyone that ever plead to a drunk driving law had to check the laws of every city they drive through, every time they do it because it can change on a moment’s notice? That’s what we are supposed to do in almost 20,000 cities across the US, instead of a judge fairly placing a restriction on us one time, at sentencing.

          First they came for the Socialists, and I did not speak out—
          Because I was not a Socialist…

      • Robin

        Chris, I will do my best to have this question presented during the call on Wednesday evening. Thanks to lovecraft for bringing it to my attention.

        I’d like to respond here more immediately just in case there isn’t ample time for the question on Wednesday’s call (I don’t know how much time Alison has allotted for the call).

        The judiciary’s role is to interpret and apply law to fact. If there is a consequence to an individual’s bad act after having been tried and convicted by an impartial judge or jury, judgment attaches to whatever extent allowable by law but in accordance with the judge or jury’s discretion. The judiciary has no responsibility to rehabilitate anyone. Nor does it have a duty to protect the public. Indeed, a controversial judgment often leads to just the opposite: a rather unstable and even dangerous public response.

        Sex offender registries remain civil regulatory schemes that are not intended as punishment by the legislative branch. Judge Matsch explicitly rejects that the Colorado legislature intended for the state’s sex offender registry to be punitive….but, as we’ve all been thrilled to learn, Judge Matsch found that the punitive effects of registration are sufficient enough to run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment.

        So this is the dilemma presented by your suggestion: no judge is likely to regard a separations of power claim as meritorious because the registration requirements impose no mandate upon the judiciary to do anything at all. For example, in most states, one is required to register his/her vehicle. The state legislature doesn’t need to impose a burden on the judiciary to achieve its desired outcome because the requirement to register a vehicle is a civil regulatory requirement that is not intended to punish people who refuse to register vehicles (although there will be punitive consequences if a person should choose to drive a vehicle without having it registered). Does this explanation help?

        • kind of living

          @ robin ….. .. you can choose not to own a vehicle ,

        • Chris F (@Robin)

          Thank you for the quick reply Robin, do you or anyone know if it was talked about on the call?

          I am curious though, you state that “Nor does it have a duty to protect the public” in regards to the judiciary, but that is exactly what is written in U.S. Code as the duty of the court:

          18 U.S. Code § 3553 – Imposition of a sentence

          (2) the need for the sentence imposed—
          (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
          (B) to afford adequate deterrence to criminal conduct;
          (C) to protect the public from further crimes of the defendant; and
          (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

          If the legislatures of national, state, and local governments are allowed to have the power to create “regulatory schemes” that inflict additional regulations on anyone for a past crime after their sentence has been completed and they are no longer under the supervision of the court (where the court already determined what was needed to protect the public) then nothing is going to stop a city from banning all those previously convicted of drunk driving from driving on its streets. A city could also ban anyone ever convicted of theft from all its stores. It could literally cause our number of laws to increase exponentially if legislatures can over-ride the judiciary in its job of protecting the public.

          We already have cases where judges punish differently knowing that legislation is interfering by requiring sex offender registration. Some cases get reduced to a non sex offense, and others, like Brock Turner, get lighter sentences due to the registry doing the rest of the judiciary’s job…until…of course, legislation changes its mind and changes the scheme again now that it is long out of the control of the judiciary.

          I’m not trying to be argumentative, I just want to understand more on how the judiciary wouldn’t see this as violating separation of powers when it so greatly interferes with the justice system without reason. Nothing would stop a judge from imposing sex offender type restrictions on someone that they deemed needed it during the sentencing phase to protect the public, but the legislation has instead made it mandatory one-size-fits-all.

        • TS

          @Chris F

          The call is today, not yesterday.

        • Robin

          I appreciate your comments and I don’t regard anything you’ve stated as argumentative.

          This is a bit “Allegory of the Cave” like. For the Judiciary to perceive your separation of powers argument it must first believe that there is a separation of powers issue. Most judiciary in the nation is not likely to be receptive to this argument because they simply do not perceive it.

          I’m a pragmatist. And even though I’m not an attorney (and never will be thanks to the “fine work of the Virginia Beach Police Dep’t,” to quote my trial judge), I understand the great importance a trial attorney places on speaking a language (through his or her pleadings) that a judge is likely to “hear.” There are a great many legal theories and trial arguments that are exceptionally compelling in a moot court hearing before a group of law professors. But many of those dogs just won’t hunt before a live bench. Your separation of powers argument is, in my opinion, one of those dogs.

          Is it winnable? This is the essential question before a plaintiffs attorney. And if it’s NOT the essential question before a plaintiffs attorney…FIND ANOTHER attorney. Otherwise, you’re probably wasting your time and money.

        • Chris F

          Thank you Robin, that makes sense.

          I am hoping to at least hear qualified Constitutional Law attorneys comment on why it isn’t a winnable avenue since I would think at some point, like in the Booker case overturning “mandatory minimums” to be only suggestions, that judges won’t accept legislature dictating set in stone punishments when it is the judiciary role to do that AND must be tailored to the individual and not the crime.

        • Paul

          I believe the SO laws due mandate the judiciary to do many things.

          Besides the fact that they mandate the court to make compliance of registration part of defendants sentencing
          Things SO laws force the court to do

          1 Order defendant to submit to DNA extraction
          2 Order SO assessment by a board and DR may increase reg and treatment time
          3 Order defendant to sign SO reg colloquy and to comply with reg
          4 Violate parole if rules of so reg are not followed
          5 Order defendant to be held and not released until DNA and reg are complete keeps defendant in jail past parole date most of the time.
          6 Mandates court to impose min sentence for crimes and reg non compliance
          I’m sure there is more

  32. TS

    Given technology has given people at their fingertips the ability to pull people’s information online, there really is no need for the registry. The registry was a tool in the age when paper and pencil was the way to track someone. Unless you are homeless, you are pretty sure to be listed somewhere online through some database via a utility bill, telephone number, voter registration, marriage, previous marriage, family, etc. So in reality, the registry needs to be done away with because LE can already get the info they want and need without someone having to come in to notify them.

    Taking the registry back behind closed doors is unnecessary and a waste of time and money when there is the aforementioned ability currently in addition to the potential continuing ability to monitor someone who is no longer under the need to be monitored once their sentence is complete. Monitoring someone who has committed a sex offense and is out of incarceration is called parole, which already has a check in requirement. Once a sentence is done, it is done. If there is a need for monitoring outside of parole and a completed sentence, then it is a form of civil commitment without the barb wire, steel fences, concrete buildings and psych treatment because the person is still being monitored, every time they register, which still violates my Constitutional rights.

    So, just doing away with a public registry is not enough, it needs to be done away with completely.

    • Paul

      In PA, 2003 They only had SVP’s on the PA ML web site. It seems to me that that may be where things will return. The SVP’s designation was determined by a certified DR and a board, then a court hearing to decide. I think that would be constitutional. The web site showed addresses, cars, and schools. There was a 10 day period to update. No travel crap either. I plead guilty 2003, no SVP, low re offense score. Sentenced 2004, got out of poke in 2005, found out id be on web site, then changed to life.

    • Chris F

      The thing is, the registry itself and all the laws against us only are followed by law abiding citizens so do nothing to prevent crime. Those with nefarious intent will not provide the correct address for police to arrest them, will not provide the email address they use to lure a child, and will not avoid the park when law restricts them from going there.

      One wanting to commit a crime that could land them in jail for 20 year to life won’t care about sex offender laws at all. This is another issue that is not brought up in cases. Packingham would have been perfect for this line of reasoning. A sex offender intending to use Facebook to lure a child wouldn’t use the email address they provide at registration to open the account or their real name. There is no indication the 1500+ sex offenders charged had a nefarious intent to harm anyone.

      Laws preventing normal legal activity to try to prohibit already illegal activity won’t work at all.

      • Steve

        This is all ok with them based on the “frightening and high” %80 recidivism crap. Imo that has to be fought and challenged or nothing changes.

    • Timothy Moore

      I believe all the hoops they make us do is merely to trip up somone, send them to jail again for a clerical violation, then say the “recidivism” rate is higher than it is. It is also good for some department to stage dragnet theatres for publicity, rounding up violators, like the recent one in Sacramento.

  33. Chris F

    The more than hour and a half call NARSOL arranged with the attorney on the Colorado case was very informative and I recommend all to listen when they can. I put the mp3 in my car to listen while driving.

    https://narsol.org/av/2017/NIA-17-9-6.mp3

    I wasn’t able to attend the call live, and am disappointed my question in an earlier post above was not asked, as I emailed it to them and was told it was also forwarded from here.

    In case anyone is in the situation to ask an attorney with Constitutional law experience the question, here it is again:
    *****
    Question: Since it is the specific job of the judiciary to punish, rehabilitate, and protect the public during the fair sentencing portion of a trial, and they must tailor that to the individual and not the crime, couldn’t the registry, duration on the registry, and all of the restrictions stemming from it justify a challenge to Separation of Powers since legislature its stepping all over the judiciary’s primary functions and isn’t even bound by the judiciary’s rules that ensure fairness?
    *****

    I would think with the US v Booker ruling that the court has established that judges must be able to do their jobs to have the sentence fit the crime and circumstances, and the mandatory registry and arbitrary and specific duration to be on the registry takes too much discretion away from the judges.

    • Lovecraft

      I was politely asked not to ask questions that deviate from the Colorado case during the call. They had the question, but I guess this wasn’t the proper time to address it. I do not mind however going to an attorney who is qualified and asking that question. We happen to have that one that works with our group and has won some cases (premise related) and he recently filed a lawsuit against amendments to the registry in NC I’ll contact Robin to get the lawyers email and send it to him and see what he has to say. I’ll let you know when I hear something.

      • Chris F (@Lovecraft)

        Thanks Lovecraft! I’m looking forward to it!

        I did figure it might not get asked on the call due to that. I guess if I could have gotten on it, I would have worded it something like “I understand you had the best chances with a Cruel and Unusual and Due Process challenge in Colorado, but do you think a “Separation of Powers” challenge could succeed…” and then go into my original question with the extra details. 🙂

    • AJ

      “I put the mp3 in my car to listen while driving.”
      Who needs NPR? Who needs Books on Tape? Who needs Blink-182?
      🙂

      • Chris F

        I know. I need to find more case arguments and conference calls like that in MP3 format. I hate wasting time on radio if I can actually learn more. I’m really addicted to this legal stuff now and sometimes a couple hours goes by without me noticing.

  34. TXSO4Life

    The attorney representing the plaintiffs in the Colorado case has already received death threats from people that dont agree with her litigating for sex offenders.
    http://www.krdo.com/news/top-stories/questions-remain-about-judges-ruling-on-colorados-sex-offender-registry/617206870

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