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National

The sex offender registry: a non-punitive civil regulatory scheme

[narsol.org 5/22/18]

Keep that in mind. Keep repeating it. A non-punitive civil regulatory scheme.

Civil, not criminal. The requirement to register is triggered by a criminal conviction, both felonies and misdemeanors, but the requirement to register is not part of punishment. It is non-punitive. So ruled the Supreme Court well over a decade ago.

It is a Non-Punitive. Civil. Regulatory. Scheme.

And yet, in many states, failure to register and even infractions in adhering to the registration procedure will land one in jail. Several years ago in Texas, Josh Gravens was on the verge of being behind bars, facing up to 25 years’ imprisonment, for a minor technicality – Failure to Comply with Registration Requirements, which in Texas and other states is a felony. He was at the registration office to update a change of address when he was arrested because he hadn’t followed the procedure of registering the new address seven days before the move, which is the law.

As the move was precipitated by a sudden marital separation, Josh hadn’t known seven days previously that he would be moving. Didn’t matter. This had occurred once before during a month’s work trip when he failed to register his temporary address in another state in time. This would have made his third felony charge, the first being at age twelve for inappropriate touching of his sister.

He fought it and was successful.

Read more

 

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  1. TR

    Another scheme of political correctness of saying that the registry is non punitive, which needs to be stopped, and be called for what it is whether we like it or not. The registry is the continuation of punishment not because of safety but simply because we refuse to let things go. We let fear and intimidation of the “stranger danger” and the “frightening high” recidivism phenomenon manipulate us to believe that the registry is the answer for safety, which is not true based on scientific and historical evidence. What we need to watch out for are politicians that pass bad laws, and vigilantes that use the public registry to attack anyone on the registry.

  2. Anonymous

    So… Part 1 of the California Penal Code is titled:

    “OF CRIMES AND PUNISHMENTS”

    Under which is Title 9, under which is PC290.

    How is PC290 not considered punishment, when it is defined in the body of law dealing with punishment (It’s defined in the Penal Code, not the Civil Code), under the part of that code dealing with crimes and punishment?

    Just curious… Seems like it’s clearly defined as punishment in writing…

  3. Tim Lawver

    Indentured to a computer\machine\ property. Clearly intended to impose affirmative bars to legal activities. Constitution be damned, at least in real time. Trump attacking deepstate. Press attacks Trump. Declining national moral….unfavourable debt load. Sick sick sick. They actually believe electronics will cure social ills. Big data indeed!

  4. pat

    “sex offender” registration is Quasi-criminal at the very least… where is the lawyer that will actually just say it to the Court? Civil regulatory scheme my ass!

    • Debo

      1. They need to provide proof of your individual level of threat to public Due Process.

      2. Admit it is punitive.

      Otherwise its going by by soon.

      • Debo

        They are just avoiding the fact that its all punitive and they are going to have to give a person due process in order to prove a person is such a threat to the public they can impose more punitive restriction on a person This is what has to happen. Anything else the glove don’t fit and you must acquit.

    • New Person

      Criminal or quasi-criminal in character… I have a perfect evidence for this. It’s called a background check. Being on the background check dictates criminal or quasi-criminal in nature. If being on the registry is reason for denial of a job, then it is proof that the registry is criminal in character.

      I say this with the background of someone in California who’s earned a 1203.4, expungement. In 1958, Kelly v Municipal did use the words “criminal or quasi-criminal in character” to describe compulsory police re-registration. One used the Kelly decision to be removed from the registry, until 2014 due to People v Hammond. For the defendant, 1203.4 thereafter probation, releases the defendant from all penalties and disabilities from the conviction. Compulsory police re-registration was deemed criminal in nature, thus punitive.

      Hammond referred to other cases stating the registry was not punitive, so therefore re-registration shouldn’t be considered criminal or quasi-criminal in character.

      The key point here is time. In 1958, I don’t believe the registry was made available to anyone, but the police department. I could use some help on the research about this. It wasn’t until the late 2000’s did the registry expanded. Now, although there are rules stating one cannot be denied a job for being on the registry, there are certain exempted employers that will bring up a background check. In those instances, the registry holds a criminal nature against a person.

      Therefore, with actual proof from a background check and an employer denying you employment only due to the registry, proves without a doubt that the registry is criminal or quasi-criminal in character.

      ….

      Now, as for the whole registry itself, we can still use Kelly v Municipal because it described the in-person registry as “compulsory police re-registration” back in 1958. Back in 1958, “compulsory police re-registration” was considered criminal in character. In other words, the registry was punitive.

      Flash forward to this era, the era of 2003 Smith v Doe, where the SCOTUS said the registry was not punitive.

      Key phrase to focus upon is “compulsory police re-registration”.

      Now factor in the US or/and state constitution:

      “Slavery is prohibited. Involuntary servitude is prohibited unless to punish a crime.”

      The only way the state can compel a person to do things is to punish for a crime. The registry isn’t to punish for a crime, but it is born out of conviction. Once you’ve done your time, then you’re a free citizen once again. The state cannot “compel” you to do anything such as “compulsory police re-registration”. This is prohibited under state and US constitutions. No one is using this tact, save Mike R in his suit.

      • CR

        Your reasoning seems sound to me, but I am not a law scholar. A part of me wonders if it could be so simple. Another part knows that the state try to do whatever it wants with or without credible justification for as long as it can get away with it, until challenged and forced to stop by the courts. I wish it a smart constitutional scholar could weigh in on it.

        “The only way the state can compel a person to do things is to punish for a crime.”

        That statement above is something I wonder about. Are there loopholes that allow the state to impose certain duties, obligations, or requirements on citizens? Example: Texas requires registrants to have either a current valid driver’s license or a state-issued ID card, and to renew it in person annually. Most people would have a very hard time living their lives without some form of government-issued ID, and so probably few people do, yet for anyone other than an ex-offender who is required to register with the state, no law requires them to have such an ID.

        • New Person

          The key with the registry is that it’s only born out of conviction.

          If it’s not to punish a crime, then the state cannot compel you to do anything b/c it’s strictly prohibited under the CA and US Constitution. The registry isn’t punishment. It’s bandied about that it isn’t punishment, and thus not under scrutiny to be compared to other punishment. Great. Let’s use that.

          Compulsory police registration and re-registration is compelled service upon a free person under penalty of law. Well, that’s not supposed to happen if it’s not punishment. Involuntary servitude is a simply written law. It’s also separate from slavery. Thus, involuntary servitude doesn’t have to resemble slavery nor slavery conditions b/c slavery is a separate sentence.

          It’s like you said, if no one challenges it, then people will continue to press onward.

          Now, in Mike R’s case, the AG’s rebuttal to involuntary servitude was that it’s not a “forced action”. I didn’t find the Kelly v Municipal case until long after Mike R submitted his case. Kelly v Municipal described in court law that the registry is “compulsory police reporting”. Another word for compulsory is compelled. So “compulsory police reporting” is “compelled service to the state”. But this compelled service isn’t punishment.

          The courts are supposed to take the layman’s POV.

          “Slavery is prohibited. Involuntary servitude is prohibited unless to punish a crime.”

          The registry has been deemed ‘not punishment’ since 2003. If it’s not punishment for a crime, then it cannot be applied.

          In fact, Justice Kennedy somewhat alluded to this notion in the Peckingham case, IIRC. He queried why there exists such restrictions on someone free from custody. Maybe he’s finally believing that this is involuntary servitude? Gotta follow the letter of the law.

  5. TDAL

    Fact
    Registrants often spend time locked up even when they are not actually convicted of even guilty. Based upon the first offence.

    He fought and won but the come to did not protect him in real time. Therefore no social contract exists. Welcome to the free for all.

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