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AK: Alaska Supreme Court overturns 2006 conviction

The Alaska Supreme Court last week overturned the conviction of a 62-year-old Ketchikan man who had been found guilty in 2006 of failure to register as a sex offender.

In its April 25th opinion, the court writes that the original offense for which ____ ____ was convicted occurred in the 1980s, before the State of Alaska passed the Alaska Sex Offender Registration Act. That 1994 law required convicted sex offenders to register with the state, even if the offense took place before 1994. Full Article

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It is a good start at least the courts are catching up and saying that is is unjust.

It sounds like this court called registration a criminal statute, not a civil requirement. Very interesting. Did we miss something in 2008?


The court writes that “permitting Charles to be convicted of violating a criminal statute that cannot constitutionally be applied to him would result in manifest injustice.”

Umm “what criminal statute?”

No, Tim, I didn’t miss it. The Alaska high court did rule that – but it was based on the Alaska Constitution, not the federal Constitution, so it does not apply outside Alaska. It was largely centered on the Alaska Constitution’s significant protection of privacy, and thus a violation of that would be punishment, and punishment cannot be applied retroactively. You can see that 2008 Alaska opinion here:

The California Constitution is not quite the same, but its privacy protection is decidedly stronger than that provided in the federal Constitution. But our high court has been VERY opposed to anything to reduce registration and all the collateral disabilities that go wit hit, so I am very doubtful it would ever interpret the California Constitution in a similar way to what the Alaska court did. I really just see no possibility that our high court as it is now constituted would ever go along with the Alaska court’s thinking and rule in our favor — they have blatently lied in their opinions too much for too many years to think they will be honest now. Confronted with such as dishonest and lying court, we stand no chance. Seems to me that our court also has suggested in rulings that there is no privacy concern in releasing this info to the public, so I don’t see how they could not say it is punishment.

I don’t see how something can be considered punishment in one state and not in another. There has to be some congruency between the state and federal definitions, doesn’t there? If not, then all sorts of experiments like the registry, that take away people’s liberties will be deemed merely regulatory. Prison itself can be considered a freaking attempt to regulate someone’s life for the public safety.

Civil commitment?

Definitions and different standards of the state Constitution is how. Consider, how can an Alaska court make an interpretation of the Alaska constitution and that somehow applies in all states even though no other state follows the Alaska constitution? The Alaska constitution has very significant differences about privacy than does the federal constitution — and that is where the difference is in this opinion.

The California constitution also has stronger privacy standards than the federal — so it is possible this line of opinion could apply here, but ONLY if our court says it does. But our court does not have to pay any attention to what the Alaska court says. An Alaska high court ruling carries no weight here.

So you’re saying the violation of privacy is what constitutes punishment under Alaska law. I see your point. But if California privacy laws are stronger than Alaska’s I do hope that someone in California will use the Alaska argument, as a logical precedent. If our present judges don’t buy that, I pray they come to their senses as the evidence mounts that registration is nothing but a waste of public resources.
As for Mike’s comment, yeah, I would say civil commitment is prison under the cloak of regulation.

No, I said California’s constitutional protection of privacy is stronger than the federal Constitution, not the Alaska constitution. I’m not at all sure how California’s protection of privacy would rate against Alaska’s.

Nonetheless, we are talking about interpretation. Just because the particular people on the Alaska court rule that way doesn’t mean the people on the California high court will think the same. In fact, our high court has gone to a lot of trouble, to the level of blatent lying, to say that our registration laws are not punishment. They have flat our ruled that red is blue in order to do so. This is not a mindset that is likely to go along with the Alaska line of thinking.

Tim, as another example, you might want to look at this thread from an Oklahoma case, and my post in that thread:

Again, the Oklahoma court says new, tougher standards (in this case, how long you must register) cannot be applied retroactively. Our California High Court last year ruled the opposite, in <i?Doe v. Harris, based on its interpretation of state law (which was very strained in order to find a way to come to a decision they wanted, no matter the reality).

Case Name: People v. Marinelli , District: 6 DCA , Case #: H039416
Opinion Date: 3/27/2014 , DAR #: 3920
Case Holding:
A defendant convicted of attempted lewd and lascivious acts on a child under 14 years (Pen. Code,§§ 664, 288, subd.(a)) is eligible for relief under Penal Code section 1203.4, subdivision (a). In 2008, appellant pled no contest to attempted lewd and lascivious acts on a child under 14 years (Pen. Code,§§ 664, 288, subd.(a)) and was granted formal probation. After successfully completing probation, he filed for relief under section 1203.4, subdivision (a), which was granted. The prosecution then appealed. Held: Affirmed. Section 1203.4, subdivision (a) permits a defendant who has successfully completed probation to withdraw his plea and receive a dismissal of the conviction. In subdivision (b), certain offenses are exempted from the statute’s relief, including violations of section 288. On its face, the statute does not expressly except attempted violations of section 288. Applying rules of statutory construction, the court observed that the statute references only violations, not attempted violations, and that it is well established that an attempt is an offense separate and distinct from the completed crime. So, under the plain language of the statute, section 1203.4, subdivision (b) does not apply to attempted violations of section 288, subdivision (a). This finding also comports with the legislative intent behind the statute. The history of section 1203.4, subdivision (a) indicates that the purpose of the specified exclusion is to prohibit those convicted of specified sex offenses to expunge his or her record under section 1203.4, thereby conserving significant investigative resources that would otherwise be expending in handling petitions filed by individuals convicted of sex offenses. This purpose is not thwarted if the section applies only to completed sex offenses and not attempts.the ca courts also recently provided more means of relief.

Huh? This is all fine and dandy — but it has nothing to do with this thread.

The introductory sentence is missing from that case summary probably because I missed it when copying it. But the summary is from CCAP resources, which is the California Appellate site.

So, basically, the court is not just inferring but ruling that the registry itself is a punishment, not a regulatory device as posited by Smith v. Doe. The state attorney was extremely negligent in not bringing out that fact, as now this decision can actually be used in the re-challenge to the registry.

I do not pretend to completely understand this ruling but I thought that the registration requirement is non-punitive and civil, and as such retroactive without being ex post facto. However, violating said requirement is criminal offense, in the present tense.

That is the beauty of this. Legal minds of future generations will (hopefully) marvel at how they got away with this.

See my post above — it explains. Bottom line: It is based on the Alaska Constitution so does not apply outside Alaska.

Can we go to the federal court and say “remove the megan’s law it is a punishment?


Alaska is consistent finding the retroactive registration violates Ex Post Facto. Appellate courts had it right in Smith v. Doe, it was the US Supremes that got it wrong in 2003. No doubt this failed legal theory cannot stand the test of time from constant challenges of so many new cases.
Significant US cases finding Retroactive Registration Violates Ex Post Facto since Smith v. Doe (U.S. Supreme Court, March 2003):
1. Doe v. State, 189 P.3d 999 (Alaska, July 2008)
2. Wallace v. State, 905 N.E.2d 371 (Indiana, April 2009)
3. State v. Letalien, 985 A.2d 4 (Maine, December 2009)
4. U.S v. Juvenile Male, 590 F.3d 924 (9th Cir. January 2010)
5. State v. Williams, 2011 WL 2732261 (Ohio, July 2011)
6. John Doe v. Department of Public Safety and Correctional Service (Maryland, March 2013)
7. Starkey v. Oklahoma Dept. of Corrections (Oklahoma, June 2013)
8. Michael Moe v. Chair of the Sex Offender Registry Board (Massachusetts, December 2013)

The Walsh Act seems to be the undoing of Smith v. Doe – PA and NV are the latest examples. On average since 2008, one state each year finds against Smith v. Doe – a significant and hopeful trend.

Would love your thoughts, please comment.x