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SCOTUS: Justices skeptical about government’s interpretation of sex-offender-registration law (Analysis)

In the early days of Monday Night Football, as soon as it became evident that the game was effectively over, color commentator “Dandy” Don Meredith would begin to croon, “Turn out the lights, the party’s over . . . .” During the government’s argument in Tuesday’s hearing in Nichols v. United States, the lights in the courtroom actually went out. And, if the Justices’ hostile questioning of the government’s lawyer provides any clue, the party may indeed be over.

After Daniel Hansmeier, the federal public defender representing petitioner Lester Ray Nichols, got through his argument fairly uneventfully, Assistant to the Solicitor General Curtis Gannon met with unfriendly fire from no fewer than five Justices. Their skepticism centered around the government’s principal contention in the case, which concerns the interpretation of a key provision in the federal Sex Offender Registration and Notification Act (SORNA). Full Analysis

Related

SCOTUS: Justices weigh whether sex offenders should be tracked worldwide

Argument preview: When a sex offender moves out of the country, does he have to tell anyone? [UPDATED]

Join the discussion

  1. John

    Not sure but it looks like SCOTUS thinks HR515 (IML) is good and better than the state law in Kansas and SORNA for notification and preventing international sex trafficking. It seems like SCOTUS is actually in favor of that law. This will be a big fight to repeal it.

    • David Kennerly

      I don’t think that we should read too much into the Justice’s comments here regarding IML. While we shouldn’t be surprised that they are aware of its passage and its potential bearing on the case under discussion, they have not yet been confronted with our arguments against it and we should expect that they will give it a full and fresh consideration if and when they do.

      Except for Alito, that is, who I have had no hope for in our challenge, anyway.

      The others are far more difficult to prognosticate in an IML challenge. If anything, I think we should be encouraged with their reactions in this case.

      • Timmmy

        Well the point I think he is making is they seem to be oblivious this law violates to US Constitution in every way.

  2. BeeH

    I didn’t get that they think it’s better. Just that it would have covered the specific situation in the case that they were hearing. They did however use “pedophiles” as a synonym for “sex offender”. The lack of distinction worries me.. And the attorney didn’t didn’t bother to correct them.

    • Lake County

      I don’t think the attorney (MR. HANSMEIER) was expecting to have a chance to reply, he stated “Sorry, Mr. Chief Justice. I don’t think I actually reserved time for rebuttal, so thank you.”. He thought his time expired. And when you are speaking to the SCOTUS, time is so very limited, so there are probably a lot of things he might have wanted to say if he had expected a rebuttal and if he knew how much time they would allow him. Few attorneys have experience speaking before SCOTUS, but he somewhat screwed up by not being prepared for a rebuttal.

  3. Son of Liberty Child of Freedom

    I read a little common sense in what Robert’s stated, a common sense Pearl & perhaps Ear Candy from Breyer, LOL!!

    If Chief Justice Roberts had some difficulty accepting the government’s “jurisdiction involved” interpretation, he had even more difficulty accepting that an ordinary person could be expected to anticipate it. “I understand your argument,” said Chief Justice Roberts, “but . . . what’s the maximum penalty for violating this provision?” Told it was 10 years, Roberts said, “That’s an awful lot to ask a layperson to parse at the penalty of ten years for being wrong. . . . For a registration violation.”

    “All right. I’m trying to understand it,” Breyer said. “It is a jurisdiction that is involved in a special way. It is a jurisdiction that used to be a residence, and it is no longer a residence. And that creates an involvement even after they’re no longer a residence.” Pause. “You know, the more I explain it, the less I understand it.” Laughter.

    Got to enjoy the logic.

  4. TiredOfCalifornia

    Even if we could take their line of questioning as some sort of indication for how they would rule, I still see no reason to be hopeful here. One of the key points is that more stringent laws are in place now, so they could rule in favor of Lester without risking any sort of precedent that would allow RSOs more freedom, due to the harsher IML now in place.

    • David Kennerly

      Part of the reason for finding some hope in a challenge to IML is practical; without it, we wouldn’t even try. That’s reason enough for hope.

      But there is more, besides. Since the Smith v. Doe decision more than a decade ago, the evidence for the regime of “regulation” constituting punishment is now overwhelming and is the fulcrum upon which the constitutionality of these laws pivots.

      It is becoming harder-and-harder for a constitutional scholar, which the Justices must be, to pretend that these laws are anything but punishment. Eventually, their credibility begins to suffer by continuing to accommodate increasingly unjust laws. We are betting that five of them will sufficiently value their reputations, if not our rights, by duly exercising the legitimate power granted them as well as those obligations they are sworn to uphold.

      It is becoming ever more difficult for our judges to maintain a sense of self-respect as jurists by pretending that these laws are anything but unconstitutional.

      We are beginning to see this, especially at the federal court levels. I believe we will see this too at SCOTUS.

      • Son of Liberty Child of Freedom

        I concur,

        As the breath and volume of violations continually gather against The endowed Rights & Titles of the people and Take a new course, no longer meandering or Vagabond about but predictably erode as the Laws of Entropy dictate, break Against the banks and ground on which these Wicked and Lazy servants Trespass upon, they must retreat or sink within the Debt they own.

      • Timmr

        I agree. Every time they come and do a compliance check, it just makes me more determined to contributed to the effort to overturn these ridiculous laws.
        If you don’t have even a little hope your resistance will bear some fruit, now or later on, you might as well swallow the bitter pill that you are supporting unjust laws, and you are part of the problem.
        IML must be challenged, for the sake of present registrants and for future groups who will fall under the yoke of these precedent setting restrictions.

  5. Derek W. Logue of OnceFallen.com

    Fred Scott. Buck v. Bell. Korematsu. Smith v. Doe. And who can forget “money is speech”?

    SCOTUS is far from infallible. It generally takes a generation or two for a bad SCOTUS decision, if it is overturned at all.

    SCOTUS judges are going to play devils’ advocates, but don’t think for a second that actually means anything.

    • Son of Liberty Child of Freedom

      I do like this line of questioning.

      13 CHIEF JUSTICE ROBERTS: What sense does it
      14 make if you have Federal law that says we’re going to
      15 add this ­­ these ­­ these sanctions when you violate
      16 the ­­ the State law? And in the one case, if you don’t
      17 register, you’re triggered and State law says, well,
      18 you’ve got to unregister too. But if you unregister ­­
      19 if you don’t unregister, that’s not included under the
      20 Federal law? Why would ­­ why would Congress draft a
      21 law like that?

      Everyone knows when a man invokes the words “Excuse me, Mr.” it means you cut him off.
      And it follows when a woman invokes the same words “Excuse me, Mr.” it can mean many things which she will never forget. One thing is sure, your headed down the wrong path.

      2 JUSTICE KAGAN: Excuse me, Mr. Gannon.
      3 It tells you exactly what it means to be a
      4 jurisdiction involved. It means a jurisdiction involved
      5 pursuant to a particular subsection which focuses only
      6 on his current residence. And all the time he was a
      7 current resident of Kansas, the registry was accurate.
      8 MR. GANNON: I understand that, Justice
      9 Kagan, but our view is that this is not the same as
      10 saying a jurisdiction described in subsection (a). It’s
      11 a more capacious word to say it’s involved pursuant to
      12 subsection (a).
      13 We know that Kansas is involved here. And
      14 Section 16921(b)(3) makes it clear that Kansas continues
      15 to be involved because that’s the provision that says
      16 that as soon as the new change in residence information
      17 is conveyed to at least one jurisdiction, that
      18 jurisdiction has to give it to every jurisdiction ­­
      19 CHIEF JUSTICE ROBERTS: Right.
      20 MR. GANNON: ­­ from or to which the change
      21 of residence occurs. So ­­
      22 CHIEF JUSTICE ROBERTS: I understand ­­ I
      23 understand your argument about 16914(a)(3), but how
      24 many ­­ what’s the ­­ the penalty for ­­ the maximum
      25 penalty for violating this provision?

      Alderson Reporting Company
      Official ­ Subject to Final Review
      27

      1 MR. GANNON: I ­­ I believe it’s ten years.
      2 It’s ­­
      3 CHIEF JUSTICE ROBERTS: Yeah. I think
      4 it’s ­­
      5 MR. GANNON: ­­ for violating the Federal
      6 provision.
      7 CHIEF JUSTICE ROBERTS: ­­ ten years.
      8 So you think somebody is supposed to look at
      9 this and say, should I register? Obviously he doesn’t <–The CauseBeing, it's a punishment
      10 want to register or unregister, whatever it is. And he
      11 says, okay, it says "involved," but that's different
      12 than described in. And (a) says "jurisdiction where the
      13 offender resides," and there's no place to register
      14 where he currently resides. And then he's supposed to
      15 say, ah, but 16914(a)(3) says "resides or will reside."
      16 MR. GANNON: And 6 ­­
      17 CHIEF JUSTICE ROBERTS: That's an awful lot
      18 to ask a ­­ a layperson to parse at the penalty of ten
      19 years for being wrong.
      20 MR. GANNON: Well, there's ­­
      21 CHIEF JUSTICE ROBERTS: For a registration
      22 violation.
      23 MR. GANNON: It's ­­ it's also a State law
      24 offense. And he signed notices, as Justice Ginsburg
      25 pointed out, explaining that he had an obligation to

      Alderson Reporting Company

      28
      Official ­ Subject to Final Review

      1 report the termination of his residence ­­
      2 JUSTICE GINSBURG: Then why wasn't ­­
      3 MR. GANNON: ­­ to Kansas.
      4 JUSTICE GINSBURG: Why wasn't the State
      5 violation pursued? So he's in the Philippines, and he's
      6 extradited because on the government's reading of SORNA.
      7 But he did commit an offense, it's conceded, under State
      8 law.
      9 MR. GANNON: That's true, Justice Ginsburg,
      10 and that's going to be true in virtually every single
      11 case of Section 2250.
      12 JUSTICE GINSBURG: Why wasn't the
      13 extradition sought under that which is clear and certain
      14 instead of a ­­ a provision where there has to be a
      15 strained interpretation?
      16 MR. GANNON: Well, maybe we should have <–Maybe if my sis had a penne she'd be my brother
      17 sought that as well, but we did think we had a strong
      18 Federal interest in this particular prosecution for
      19 multiple reasons. He was a Federal sex offender. And
      20 as the Court has already recognized, the United States
      21 has a special interest in ensuring that Federal ­­
      22 JUSTICE BREYER: In your interpretation.
      23 Let's look at this. It's the word "involved." And
      24 you're saying it means ever involved; is that right?
      25 MR. GANNON: No. It means involved at the

      The reality is MR. GANNON's thinking is suspect.

  6. Eric Knight

    I am not going to jump on any cheering bandwagon here. While it is patently obvious that some of the justices were correctly questioning the validity of the scheme of SORNA implementation – even John “Price Club” Roberts was a bit miffed (though he must be mindful of his own legacy here, as well as the fact he owes his very presence on the Supreme Court due to Smith v Doe, so he’s probably going to walk a fine line on the decision) – Justice Alito STILL came out with the “well, aren’t pedophiles dangerous and that’s why we have SORNA?” argument. THIS IS VERY TELLING.

    I hate to write in all caps, but had to be emphatic here. When litigating sex offender issues in front of a Constitutional-decisionmaking entity such as the US Supreme Court, one must always…ALWAYS!!!… argue the TRUE facts of recidivism and danger by former sex offenders. The fact that Alito made mention of the “danger” was telling because he would NOT have stated what he said IF the litigant for our side brought out the facts in the first place.

    This is my bugaboo and I am at a point where the ONLY litigants I can trust whom will bring out this argument is Janice Bellucci and other CA RSOL legal professionals. I’m sorry for being a hardass about this but damn it!!! lawyers, MAN UP AND EMPHASIZE THE OBVIOUS!

    End of rant….

    • Son of Liberty Child of Freedom

      I concur,

      “argue the TRUE facts of recidivism and danger by former sex offenders. The fact that Alito made mention of the “danger” was telling because he would NOT have stated what he said IF the litigant for our side brought out the facts in the first place.”

      The most convincing arguments and cases are those that are built upon The Facts & Data taken from your adversary who created them.

      This is the reason the Nazi members where put to Trail & Executed by there own Actions & Words.

      • SCOTUS WAKE UP

        Rational Basis Test does not require a Rational Result, only a Rational reason to want the law

        • Son of Liberty Child of Freedom

          Fine, allow me to introduce the “Disparate impact” argument as a set of tools.

          Please review the following link, I believe it can serve a good purpose.

          https://en.wikipedia.org/wiki/Disparate_impact

        • David Kennerly

          It looks good to me. I’m sure we would have trouble establishing ourselves as “a protected class”, though. The problem is that we are really quite the opposite of a “protected class”; we’re the “despised class” to whom nearly anything can be done.

          “Disabled” is probably the closest we come to a protected class, and that has been asserted before (sex offenders as “disabled”), although I think always unsuccessfully such as in S.O. challenges utilizing the Americans with Disability Act.

          Still, I think it might be profitable to include it in a legal arsenal.

        • Son of Liberty Child of Freedom

          SCOTUS WAKE UP

          The Courts need to be wakened to the Fact that STRICT SCRUTINY must be applied in order not to twist & pervert Justice.

          Stupidity should not be allowed to dictate the interest of The People of The United States by those temporally elected & empowered by The Right & Titles of The People.

          “In United States v. Carolene Products Co. the Court in Footnote Four left open the possibility that laws that seem to be within “a specific prohibition of the Constitution,” which restrict the political process, or which burden “discrete and insular minorities” might receive more exacting review. Today, such laws receive STRICT SCRUTINY, whereas laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review.”

          Rational basis review is not a genuine effort to determine the legislature’s actual reasons for enacting a statute, nor to inquire into whether a statute does in fact further a legitimate end of government. A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur (or even worse, a word salad). In 2008, Justice John Paul Stevens reaffirmed the lenient nature of rational basis review in a concurring opinion: “[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting STUPID LAWS.'”

          New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, ___ (2008) (Stevens, J., concurring).

          https://en.wikipedia.org/wiki/Rational_basis_review

        • Timmr

          “‘The Constitution does not prohibit legislatures from enacting STUPID LAWS.'”
          They are not stupid, as in they don’t know what they are doing. They know what they are doing, it is just not exactly was is the stated reason giving for the law.

    • Friend of RSOL

      Perhaps the irrationality of these laws can be emphasized by noting the “Parade of Horribles” fallacy. I posted this somewhere else, but it is applicable here as well….

      “A parade of horribles is … a rhetorical device whereby the speaker argues against taking a certain course of action by listing a number of extremely undesirable events which will ostensibly result from the action. Its power lies in the emotional impact of the unpleasant predictions; however, a parade of horribles can potentially be a fallacy if one or more of the following is true:

      – The action doesn’t actually change the likelihood of the “horribles” occurring. The “horribles” could be unlikely to occur even if the action is taken, or they could be likely to happen anyway even if the action is avoided. This is an appeal to probability, and can be viewed as a non sequitur insofar as the action has no causal relation to the “horribles”.

      – The argument relies solely on the emotional impact of the “horribles” (an appeal to emotion).

      – The “horribles” have a low probability of occurring when compared to the high probability of good occurring.

      A parade of horribles is a type of hyperbole, because it exaggerates the negative results of the action, arguing that “If we do this, ultimately all these horrible things will happen.”

      • Eric Knight

        Of course, the entire sex offender registry is based upon a “parade of horribles.” Therefore, the antis MUST make sure that their parade must be paraded front and center over any argument, otherwise justices must make the logical decision against the registry or law that emanates from it.

      • Timmr

        Good point. This may also be something to use only with discretion on our side. I am going to be a more aware of this when I make a statement like “what’s next, the concentration camps?” That is also an emotionally charged statement that presumes the worst, but has not happened or may not happen. If we focus the weight of our arguments on the worst of the what ifs, then we can illicit a counter emotional response like, “that has not happened and will not happen in the US. You are using it to promote fear only.” Probably better to focus on what is happening now, which is of itself pretty bad. If we have to create logical projections, then they should be supported by facts and trends that we verify.
        We need to have more stories about what is happening to registrants right now out into the public view. Janice’s including of the list of people murdered due to being on the registry into the IML lawsuit is appropriate. It is good objection to more public disclosure laws since it is a parade of horrors that has come true for many.

  7. David

    @ Son of Liberty Child of Freedom: I have no doubt that the attorneys arguing on behalf of the plaintiff did indeed submit “the facts” in their brief. It’s just clear the Justice(s) don’t give a turd and probably never even read the brief!! God forbid that their own “facts” be contradicted by actual statistics, research and evidence!

    • Son of Liberty Child of Freedom

      David,

      Yes we may correctly infer by the past actions & statements by judges who have heard or read the various cases placed before them that they harbor no kind regard for all those effected by their proactive or reactive Judgments.

      We must none the less make our Presence Known continually, like a sprinkle for chocolate, like a rain for sunshine, like a shower for a earthquake, like a deluge for Divine Providence from The Creator Most High.

      Psalm 40

      1 (To the chief Musician, A Psalm of David.) I waited patiently for the LORD; and he inclined unto me, and heard my cry.

      2 He brought me up also out of an horrible pit, out of the miry clay, and set my feet upon a rock, and established my goings.

      3 And he hath put a new song in my mouth, even praise unto our God: many shall see it, and fear, and shall trust in the LORD.

      4 Blessed is that man that maketh the LORD his trust, and respecteth not the proud, nor such as turn aside to lies.

      5 Many, O LORD my God, are thy wonderful works which thou hast done, and thy thoughts which are to us-ward: they cannot be reckoned up in order unto thee: if I would declare and speak of them, they are more than can be numbered.

      6 Sacrifice and offering thou didst not desire; mine ears hast thou opened: burnt offering and sin offering hast thou not required.

      In the interim we must: Work Hard, Train Hard, & Fight Hard against the obstacles placed before us.

  8. Jakub

    I offer a suggested read for you all. Law Professor Corey Yung, at Univ. of Kansas, wrote a review in 2010, called the The Emerging Criminal War on Sex Offenders.

    http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=411609#show1456042

    Abstract:
    This article addresses four central questions. First, what is the difference between normal law enforcement policy and a “war” on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex criminals? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, how can it be stopped?

    By reviewing America’s history of criminal wars, primarily the War on Drugs, the article identifies three essential characteristics of a criminal war: marshalling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA has turned what was conventional law enforcement into a nascent criminal war on sex crimes. This change can have repercussions as substantial as the drug war has had on American criminal justice and society.

    It certainly seems to be the case in the USA. The war on drugs failed, now they are focusing attention on a despicable class of people.

    Stay strong all ya all!

  9. David H

    it’s in:

    Justice Samuel Alito wrote for a unanimous court in Nichols v. United States. The court reversed the judgment of the 10th Circuit Court of Appeals and held that the Sex Offender Registration and Notification Act (SORNA) does not require a registered sex offender to update his or her state registration when the offender moves to a non-SORNA jurisdiction.

    http://www.supremecourt.gov/opinions/15pdf/15-5238_khlo.pdf

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