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General NewsNational

NC: First Amendment woes in North Carolina

As most VC readers know, First Amendment law is dominated by a single question, the 800-pound constitutional gorilla that’s always in the room:  What “level of scrutiny” will the court apply to the challenged government action? How much will it demand from the government by way of justification for whatever it was that it did? How high will it set the bar? …

I’ve said it many times before — these sex offender cases are of the deepest importance, not because of any special concern we might have for convicted sex offenders but because they’re the despised minority du jour, subject to the harshest treatment that legislators and law enforcement officials can dream up; unless the courts stand up and make it clear that there are lines the government cannot cross without running afoul of the Constitution, government action will become more and more abusive, and then all of our rights are at risk. A shame that the NC court didn’t view things that way. Full Editorial (Washington Post)

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  1. David

    The usual: judges twisting over backwards to uphold unconstitutional laws specifically because they are directed at Registered Citizens. Thank God that California RC’s have Janice fighting (very successfully!!) to protect our rights and defend our freedom!

  2. New Person

    California said restricting registrants is unconstitutional. NC says is it constitutional b/c it’s not regulating speech, but rather conduct.

    I fear if this goes up to the SCOTUS that Roberts will be thinking it’s regulating conduct and not speech as well.

    And with many registrants on lifetime registration, the government gives no reprieve of registration and thus negates any form of rehabilitation. SCOTUS says it is not punishment, thus allowing the constitutional rights of registrants to be degraded and continue to be degraded.

    I think this is similar to California wobblers who are put on probation without imposition of sentencing. Punishment is defined by the sentence levied, Felony or Misdemeanor sentencing. That is skirted by withholding sentencing and given probation. So if you were charged with a Felony and sentencing suspended (no sentence given) with probation, then you are living with a Felony conviction indefinitely. Although you can reduce that felony to a misdemeanor via 17(b)(3), the courts muddle verbiage and English sentence structure to make it discretionary to the courts.

    How can that be? The original case, People vs Banks in 1958, has the judge on record saying that if a person completes probation successfully when sentence is suspended, then that person has completed the condition required for a misdemeanor reduction. That is how 17(b)(3) came about, to give reprieve in what seemed to be legally indefinite felony conviction.

    17(b) misdemeanor reduction has ‘conditions’ to be met for reduction. Condition(s) met runs contrary to discretionary judgement by the courts. Being determined a wobbler is the qualification for reduction (and that’s where discretion is applied). The condition(s) under 17(b) represents the end game to being a wobbler. Yet the courts and lawyers obfuscate the law to where the determinant is “feelings of the court” rather than following a rule of law.

    Concurrently, it is also discretionary to have a Certificate of Rehabilitation awarded. Same thought process here. Where is the rule of law to provide relief? Why is it based upon feelings than the merit of facts of being offense free for a decade or around those parts?

    I thought we’re in a civilized, refined society. Instead, we have laws that are manipulated terribly against the constitution as well as limiting the ability to be a part of society in an equal manner.

    Lifetime registration is considered by law not a punishment. That lifetime label negates the right to life, liberty, and pursuit of happiness as it adds burden on travel, living conditions, holiday conditions (halloween), job opportunities, and the pursuit to be a part of society equally. Registration ostracizes specific people. Some DUI’s kill people, but those convicted are not registered, driving capability revoked, revoked from watching television advertising alcohol, revoked from going to the internet with adverts on alcohol or networking with people who talk about alcohol. Are DUI convicts restricted from living near supermarkets, liquor stores, and gas stations? Are DUI convicts denied cold medicine? There is no equal protection for registrants because registrants are not treated like equal citizens.

    BTW, I was told if I move from California, then I would be forced to register with the new state and federally. That would mean if I wanted to attempt to end registration, then I would have to do so with with California, the new state, and the federal government. Logistically, it is better to stay in California for 10 years to attempt to end registration. That logic prevents me from moving closer to family members in another state. It’s a gamble to wait for 10 years to apply for a COR and hope it gets awarded to me. It’s a gamble b/c it’s mostly discretionary and you need to do research on which county/city gives you the best possibility. So does registration restrict travel? In a roundabout way, yes. Battling an uphill battle is difficult enough. Battling three uphill battles – I can’t fathom. But I will give up if I don’t get the COR b/c it’ll be pointless due to the fact there is no other form of relief.

    Mentally, I’m drained. Every day I wake I’m reminded. I think it’s a form of psychological abuse, but I don’t know how to quantify it to have legal standing. Two wrongs don’t make it right. To have no definitive pathway for reprieve is cruel and unusual punishment.

    The way Chief Justice Roberts came to his decision and the way NC court came to their decision does not apply the constitution first. And because so, more unconstitutional laws can be expanded. What’s odd is a Price Club membership can be dissolved at any time, but Registration cannot. Even if the SCOTUS ruling is overturned, it does not apply to those convicted after a certain date – they will still have to register, including myself.

    I’m so grateful for Janice and others. Without them and other posters, I surely would feel even more isolated. I’m grateful for Frank. He’s got more courage than I can ever muster. I just read and try to live day to day. Tomorrow seems so far away… especially when the courts do not believe we have constitutional rights.

    • Prometheus

      My sentence was suspended and I received probation, which I assumed at the time meant that if I completed probation successfully I could have the charge reduced to a misdemeanor in ten years. That is what my lawyer told me. First time offense with opportunity for redemption. Between then and now the laws changed so my offense is no longer eligible for reduction. So now I am a life long felon, second only in despicable status to being a sex offender. They keep pulling the rug out from under you, you operate on trust following all the laws as if it would get you anything, how can one ever trust their words again?

      • MS

        Prometheus,

        Have you consulted with an attorney and/or researched to verify that there isn’t some way for you to have your felony reduced? If you accepted a plea deal partially because it was your understanding that you would be able to have it reduced later…maybe there is some recourse? When the laws changed…was there a clause somewhere in there that stated it was retroactive? Maybe taking a plea deal leaves all who take them at the mercy of the whims of lawmakers. Retroactively screwing us whenever they can.

        There is one national law firm that does challenge some post conviction law changes based on constitutional grounds. In my case…I have hired them to expunge my pre AB20 conviction. Crime: 311.11(a). AB20 took expungment off the table for people convicted after Jan 1 2014

        • Prometheus

          I would like to talk to this lawyer. I am willing to make an investment in this, if there is a possibility. Since my offense was 288(a), I thought I was ineligible, based on talking to lawyer and going on the expungement sites.

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