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The 6th Circuit Finally Said The Magic Word: Punitive

Of the many legal fictions enjoyed by judges, few have done as much damage to as many people as calling sex offender registries “regulatory.” The trick is that if it’s characterized as regulatory, then it’s not punitive. And if it’s punitive, then it opens a whole slew of constitutional rights that would render the concept unlawful. But if legislators squint and write the “r” word instead of the “p” word, and judges squint and agree, problem solved! Full Editorial

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  1. nomore

    The designation of punitive is the key. Even in present cases they’ll have to assess the idea of giving someone an extra 15, 25 and lifetime probation for these crimes. They won’t be able to do it which is why I believe the regulatory scam came about.

    Don’t settle for incremental, people. The entire registry can and will be abolished.

    • David

      It cannot come fast enough for one million subjugated slaves

    • Notgivingup

      It is kind of funny nomore, the more I read what you and others say, the more I understand the need for the registry to be dismantled. I was in a group the other night with around 30 other RCs and I asked them what their major hurdle was in life, most all said the registry and the inability to move freely, have a job because many employers refuse to hire them when they are on the registry, the ones of us that are doing good is only because we have our own business or have jobs ( Trades) that the companies could care less about the registry, they just want good workers. All RCs have said the registry is punitive but it is finally good to hear a court say what we all have known forever. I asked the same questions many years ago, WHY were some of the groups always fighting living restrictions, travel restrictions etc instead of fighting to dismantle the registry, I finally stopped asking and have went along for the ride, making my donations, giving my time to them in the hopes that they are smarter than me and will accomplish the goals we want one step at a time. I still believe in them but after all of these years I too am starting to question will any of these nightmares ever end in my life time. Do we need to go straight to the throat of the registry and see what happens or do we continue with baby steps until we get what is right.

      • nomore

        Thank you. My first clue that the courts would come around was Ginsberg’s dissenting comments, then I read about the Kansas case where the judge blasted his colleagues. It shouldn’t take as long as it has for people to say enough but justice is slow. We’ve been sold the idea that we deserve to be registered like cattle by all, even those that would “advocate” for us but don’t buy it. When you commit a crime, you do your time and then you’re done. That’s the way it was and should remain.

        The courts are finally waking up. Even if Michigan doesn’t stand, it won’t be long before another state follows it and bucks the system.

      • nomore

        One more thing. Always go for the throat! 🙂

      • Robert

        I believe that your claim “WHY were some of the groups always fighting living restrictions, travel restrictions etc instead of fighting to dismantle the registry” is not a true representation of what has been happening in the courts or with advocacy groups.

        Since 2003, registration is the law of the land in all 50 states. Federal courts have upheld registration citing precedent law. Then 2006 AWA came along and the US government started dumping millions of $ into pushing registration laws per the 2006 act. Some states pushed back and some states have complied to the US DOJ efforts in increasing sex offender registration and notification since the DOJ Smart office was founded in 2008 from AWA. US DOJ has pumped now billions into implementing AWA since 2008 which is largely a failure. To date DOJ reports 17 states in compliance with AWA: http://www.smart.gov/newsroom_jurisdictions_sorna.htm

        If you look at the AWA states or live in one, you know the legal mess created in the state courts when AWA is implemented. The latest example is Nevada. The numerous lawsuits resulted in significant rulings for some states finding registration components unconstitutional:

        Doe v. State, 189 P.3d 999 (Alaska 2008)
        Wallace v. State, 905 N.E.2d 371 (Ind. 2009)
        Maine v. Letalien, 985 A.2d 4 (Me. 2009)
        State v. Williams, 952 N.E.2d 1108 (Ohio 2011)
        Department of Public Safety and Correctional Services v. Doe (MA March 2013)
        Starkey v. Department of Corrections (OK June 25, 2013)
        John Doe v. State of New Hampshire (NH February 12, 2015)

        This new case: John, Mary Does v. State of Michigan (6th Circuit August, 2, 2016) is the first federal court to find registration unconstitutional. This is a clearer path to SCROTUS than the state cases.

        For a better understanding of why this ruling is so important in the goal of challenging Smith v. Doe at SCROTUS, watch the 2013 RSOL video by Dr. Catherine Carpenter: https://www.youtube.com/watch?v=9qyA9TU8nE8
        She lays it out here – where is wrong and where we need to go. Take some time and watch this important presentation.

        To say that advocacy groups have been focusing on presence laws and not the registry laws themselves is just plain wrong. Major cases above were brought on by the ACLU. The ACLU has filed registration challenges in Vermont, Connecticut, Maine, Kansas, Minnesota, Maryland, Michigan, Rhode Island, Nevada, Missouri , New Hampshire, Florida, Colorado, Ohio, Indiana, Kansas and Washington to name a few. RSOL is getting stronger, WAR is getting stronger and more groups are forming and will undoubtedly bring more legal challenges.

        Many scholars have advocated the same. Legal scholars are overwhelming in agreement. There are very few legal articles in support of the registry.

        The major impediment to challenging the constitutionality of sex registration is that it is the law of the land until it goes on trial again in the US Supreme Court and that it is so firmly rooted in our government. It is not because no one is actively challenging these laws as you incorrectly state here.

        Said best in response to a question on what can we do at an RSOL conference “we have data on our side, over time data will prevail” In other words we have truth on our side, it will just take a lot of effort to get it known. Take some time and watch Dr. Carpenter’s video. Take some time to think about where we are now from just 2013 when she made the presentation. You will realize that we are closer to the goal of proving registration is punishment than we were just a few years ago. Proving punishment is likely the jenga block needed to make this scheme come crashing down.

        • nomore

          Actually it’s a spot on representation since these groups advocate for reform as stated.

          These core challenges will make it to the supreme court only one way… By challenging the law of the land.

          If your group specifically espouses reform, then you can safely assume, you’re going to get the peas and carrots gone after. The steak is of the menu. I like veggies too but I’d prefer steak.

        • Notgivingup

          Thanks Robert, I will read these when I get some free time.

        • 1greg

          Robert, very well said!!!

    • nomore

      There’s that Alaska bs case again. If Michigan stands, you’re next you Alaskan muther!

      https://www.prisonlegalnews.org/news/2007/may/15/california-sex-offender-registration-requirement-held-not-punishment/

  2. Clark

    That rumble coming from Michigan…… no no its not an earthquake…
    Its the weight of the Constitution coming for california
    Whewwwwwwwww !!

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