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DOJ SMART: Case Law Updates

Through the course of the year, the SMART Office follows state and federal case law about sex offender registration and notification, tracking the latest opinions, trends and arguments. We aim to publish a summary for informational purposes annually. Archived issues are available below. Case Law Updates

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  1. Facts should matter

    I’ve never seen a government agency so proud of something that doesn’t work. The AWA is inefficient, ineffectual, monotonous and convoluted.

  2. New Person

    Under “Who’s Required to Register”
    ========
    Nearly all registration requirements in the United States are initially triggered by a conviction
    for a criminal offense.1 Most jurisdictions limit their registration and notification systems
    to persons convicted of sex offenses and nonparental kidnapping of a minor.
    ========

    1. Conviction is a trigger. This obliterates the registry is like jury duty, military service, etc…
    2. Conviction is needed. What if the conviction does not exist any longer?
    3. Registration requirements are triggered by a conviction. Why isn’t this considered a penalty and disability? Requirement – meaning you are forced to adhere to whatever registration levies unto you which includes in-person reporting, reporting of residential movement, reporting movement out of state, reporting movement to travel abroad, is disabled from certain jobs, must report voluntary work, must report working with minors if conviction was with a minor, must subject themselves to a fingerprint annually, and all the other laws created or being created as added penalty “triggered by a conviction”.

    There is a difference between punishment and not-a-punishment. The registry isn’t punishment, but it is “triggered by a conviction”.

    13th Amendment: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Since the registry isn’t punishment and is only “triggered by a conviction”, then the registry is in violation of the 13th amendment. Only punishment for a crime is it constitutional to enforce compulsory service. I reiterate, the registry is not punishment, but it was “triggered by a conviction”.

    I don’t comprehend how the laws allowed this end around about the 13th amendment. This allows the state legislators to continue to pile up compulsory service required of registrants to adhere when registrants have finished their punishment custody service to the state.

    If a registrant who has finished their punishment custody and has regained their citizenry rights refuses to serve the state’s registry scheme that is not punishment, then the registrant will be punished for not adhering to the compulsory service that is known to be called the Registry. A free citizen is being domineered into compulsory service to the State under penalty of law (meaning no longer under custody and completed all the punishment terms, including all types of reporting and restrictions to follow). Do all former convicts who completed their punishment custody must continue to serve the state and follow “extra law” beyond what is law for non-convicted citizens? Do all former convicts who completed their punishment custody must subject themselves every year to fingerprinting and a mug shot?

    If the registry isn’t punishment and it’s coercing free citizens to serve the state under penalty of law, then why isn’t this wholly unconstitutional?

  3. New Person

    OMGosh!!!!

    Under “Other Constitutional Issues”
    ========
    In addition to these two recent cases (NC – Peckingham/1st amendment, CO – 8th & 14th amendments), state and federal courts have previously held the following:

    • The collection of internet identifiers violates the First Amendment19
    • Being ordered to register as a sex offender triggers the protections of procedural due
    process20
    Sex Offender Registration and Notification in the United States: Current Case Law and Issues March 2018
    SMART Office │ SMART.gov 2
    • Publishing information about an offender’s “primary and secondary targets” violates
    due process21
    • Being ordered to register as a parole condition violates due process when the underlying
    convictions are not sexual in nature22
    • Requiring registration for a conviction for solicitation, and not prostitution, when each
    offense had the same elements, violates due process23
    • A “three-strikes” sentence based on a failure to register conviction is cruel and unusual
    punishment24
    • Mandatory life imprisonment for a second conviction of failure to register is cruel and
    unusual punishment25
    • Requiring an offender to continue to register when he had been convicted of having
    consensual sex with his 14-year-old girlfriend (he was 18 at the time) and had his case
    successfully dismissed under a deferred disposition is cruel and unusual punishment26
    ========

    Ohhhh snap! Look at the last bullet point!!!!
    Reference 26 link: https://www.courtlistener.com/opinion/1896669/people-v-dipiazza/

    In my head this reads, “Requiring an offender to continue to register after having his case successfully dismissed is cruel and unusual punishment.”

    He broke a “statutory law”. That is a huge distinction as opposed to forcible rape. So this case isn’t just for “teens”. At 18 years old, he’s an adult. The program he’s in is similar to CA’s section 1203.4 of the Penal Code, such that both have to verdict set aside as well as have the information/accusation dismissed. Both programs are given to those whose offenses aren’t malicious that they are “rehabilitation” programs. For those in CA, see People v Banks, where a judge specifically states:

    if imposition of sentence is suspended, the purpose expressed by section 1203.4 read with section 17 that the offense remains a felony until the statutory rehabilitation procedure has been had, at which time the defendant is restored “to his former status in society insofar as the state by legislation is able to do so, with one exception, namely, that … the record in the criminal case may be used against him for limited purposes in any criminal proceeding thereafter brought against him.” (Stephens v. Toomey (1959), supra, p. 871 of 51 Cal.2d.)

    This case is a huge win for people whose case has been dismissed!

    For us in CA with 1203.4, we can identify with the fact that the registry is growing too large and the fact there is only one type of registry term – a lifetime appointment. The vast increase in registrants makes it more difficult to keep track to the higher risk level registrants. Also, the lifetime appointment is applied to all registrants and doesn’t differentiate risk levels. The Federal Housing and Urban Development (HUD) will not give anyone assistance if they are given the “lifetime term”, implying the dangerous risk level to someone who has that type of registry term. The IML makes no distinction between those convictions against minors with respect to risk levels, which is supplied by the state of CA. All those in CA who have earned 1203.4 still carry the label and stigma of being a convicted sex offender when you are no longer convicted. Like in that case of the 18-year old boy (who’s now older), you’re depressed because you carry that title of being a sex offender monster – again, you’re put on the IML still and you cannot qualify for HUD assistance.

    Those whose case has been dismissed are still classified with the rest of the registry whose case are not dismissed. On a background check, you will see you are a sex offender, when it was applied, and where it was applied. In fact, it will list your case and one line down it states when it was set aside. But employers don’t read that line because all they see is you were convicted and what you were convicted with. This negates what was referenced in People v Banks where the criminal record maybe used in limited purposes in any criminal proceedings. This now is available to potential employers.

    1203.4 has been deemed by the courts to being identified as “statutory rehabilitation procedure”, but the state of CA “disregards” this rehabilitation process. The People v DiPiazza made a point that by disregarding the case dismissal “rehabilitation” process negates the registry’s purpose as there is no rehabilitation process applied. In Michigan, the 18-year old had to be on the registry for 10-years. In CA, all registrants are on the registry for a lifetime.

    This is scary good on two folds:
    1. Registering after receiving a case dismissal is cruel and unusual punishment
    2. CA registry is cruel and unusual such that it doesn’t seek to rehabilitate as there exists only one term of registry – a lifetime term.

    wow… I’m going to be citing People v DiPiazza in my future case unless someone else wants to take this up. I wonder if the ACLU will be interested with pushing for 1203.4 registrants to no longer be registrants? Because wow… it’s cruel and unusual punishment as the state doesn’t care about rehabilitative procedures! This is great news for us, right?

  4. New Person

    On another note… the IML (from that People v DiPiazza case)
    ====
    This Court first must determine whether the registration requirement constitutes punishment in accordance with the facts of this case. “`[P]unishment, generally, is the deliberate imposition, by some agency of the state, of some measure intended to chastise, deter or discipline an offender.'” Ayres, supra at 14, 608 N.W.2d 132, quoting Kelley, supra at 1108.
    ====

    The demarcation on passports for the IML is to:
    1) Chastise any registrant
    2) Deter registrants from travel without the demarcation (Chastising them by revoking the current passport without demarcation)
    3) Deter registrants from travelling around the world without molestation

    All three points are punishment.

    • AJ

      @New Person:
      Note that it doesn’t need to be all three: chastise, deter OR discipline. Just like in Saenz v. Roe (https://supreme.justia.com/cases/federal/us/526/489/case.html), the IML marking has a chilling effect on one’s exercising of a fundamental right (freedom of travel, which includes internationally). IOW, it deters exercising that right.

      • New Person

        @AJ,

        My three points fit two of the three types of punishment. I wasn’t stating we needed to fulfill all three punishments to chastise, deter, or discipline an offender for the suit to work. Fulfilling one would suffice, but I denote three instances.

  5. Ron

    Common people, we should all know by now our constitution is about a legitimate as a 3rd world country’s. It has been manipulated by politicians and justices alike, to fit their own beliefs and goals. Every ruling class needs people to rule. This power over people satisfies their need to NOT be just the average person. Fear the powerful not because of their power, but because of their need to be powerful.

  6. mike r

    Whoa wait a minute I never seen this site and was not aware the smart office was actually putting this out. I already found one case to check out. If this is correct how the hell can they justify keeping someone not on paper after 15 years on the list??????????
    United States v. Moore, 449 Fed. Appx.
    677 (9th Cir. 2011) (probation condition requiring registration for a tier I offender more than 15 years after the conviction was invalid)

    • ONE DAY AT A TIME

      Could they just raise everyone’s tier above level 1 then? Just like CP is now tier 3 with the new CA tier law?

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