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AZ: Court rejects Cochise County man’s challenge of sex-offender registry

WASHINGTON – A federal court Friday upheld a Cochise County man’s conviction for failing to register as a sex offender, even though the state’s the sex-offender registry law was passed the year after his sexual misconduct conviction.

A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected David Bernard Clark’s argument that applying a law that passed after his crime was an improper ex post facto application. Full Article

Decision

Oral Argument

Related

MI: Court voids state sex offender registry for imposing unconstitutionally retroactive punishment [UPDATED]

The 6th Circuit Finally Said The Magic Word: Punitive

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  1. Eric Knight

    The 9th Circuit has turned into a crapshoot when it comes to sex offense decisions. I am not at all happy with this case. The complainant was a classic Rome/Juliet individual, and frankly in conjunction with the 6th Circuit’s decision in Michigan, this should have been a fairly simple case to argue and win.

    I am glad that Janice has gone regional (if not national), as this type of case would defer to the expertise and experience that she and her legal teams have crafted in the past few years. Sadly, though, this type of decision makes her job that much harder, as precedents are difficult to navigate past, particularly at the federal level.

    • Janice Bellucci

      The 9th Circuit decision is a significant blow to justice and will make it more difficult although not impossible to eventually overturn Smith v. Doe. The silver lining to this dark cloud is that the opposing decisions rendered by the 6th and 9th Circuits about whether sex offender registration constitutes punishment could persuade the U.S. Supreme Court that it is time to review its 2003 decision.

      • nomore

        You should know better than I but the supreme court would almost have to step in. As for the 9th decision… it’s nothing that hasn’t been said already, no? The sore thumb is the 6ths.

      • 4sensiblepolicies

        The sentence for his crime at the age of 18 (apparently for statutory rape of a 14 year old) was probation – his sentence 34 years later for failure to register was 3.5 years in prison. Unbelievable. Yet the 9th circuit says it is good and fine?

        My thinking on this (esp. in light of the opposite more conservative 6th Circuit decision) is that liberals justices in liberal areas such as 9th Circuit are primarily influenced by the ‘if it saves on child’ mantra and rabid belief that human trafficking is rampant . Note:(9th Circuit Makeup by Presidential appointment =: 19-Democrats, 9-Repubicans :The 6th circuit (5-Democrat, 10-Republican).

        My thought is that the liberal justices have accepted a form of ethical relativism in their decision-making.

        That is, they know that these registration laws have evolved to become ex post facto punishment, and ethically and morally they should uphold the Constitution. But they are able to set aside their oath to uphold the Constitution in order to achieve what they see as the greater good of protecting potential victims. The verbage of this decision gives some clue to this. The presiding 9th circuit judge states ‘”considering all the relevant factors, taken together, that Arizona Court of Appeals was not unreasonable in holding that the statute’s punitive efforts failed to outweigh its regulatory purposes.” Clearly, they are stating that they consider the relevant factor to be that sex offenders are monsters that must be stopped from victimizing the vulnerable and weak. They admit the measures are punitive, but they are saying that the goal of saving the victims is more important. They are so brainwashed with their false beliefs there is no other answer to this question for them. Their concern for some imaginary victim saved by the registry exceeds concern for the registrant and their family – the moral lepers of society.

        When it comes to the 6th Circuit, they have held the US Constitution in higher regard. I used to believe that the liberal justice would uphold the rights of the oppressed more so than the conservative. But in my opinion, there is a whole new dynamic at work here. Sex offenders are universally hated. Nobody puts a lot of effort into pondering the effects of oppression on a past sex offender. However, what most people (even Judges) do care about primarily is their personal values. My emerging belief is that liberal justices believe ‘if it saves one child’ outweighs the tenets of the US Constitution. Conservative justices tend to put the Constitution above their own personal prejudices.

        In short, I don’t know who to trust anymore when it comes to politics or how to overcome the prevalent misinformation about RC’s that the liberal community has bought into. But for sure, I am no longer counting one one party over the other to help get us out of this mess. I surely became disenfranchised after Obama’s dirty deed in signing off on IML. I believe that was another example of ethical relativism.

        We KNOW these additional regulations and punitive measures are unconstitutional. My greatest fear is that the Supreme Courts will again discount the Constitution when ruling on this circuit split. If they rule in favor of the 9th Circuit, this will be an extreme blow to the rights of all Americans. In essence, what we will have is a government that can create laws to oppress, harass, and imprison it’s own citizens who may have crossed some line. There would need to be a trigger event – such as a conviction or previously documented characteristic of an individual. After that, there would be no limit to legislative overreach where the new punishment for failure to adhere to new requirements can be magnitudes more serious than the original infraction.

        • Screech

          The problem with your logic is that it was the wildly conservative state of Arizona that imposed this insane😨 prison sentence on this man in the first place. AZ also just started this year bringing level 1 offenders out into the sunlight. Barry Goldwater’s state went bonkers over sex offenders long before the 9th circuit got involved. Arizona blaming the 9th is like blaming the cop sitting in a donut shop across the street from not running fast enough to stop me from holding up this bank

        • nomore

          We’ve already proven this is a bipartisan attack on us. Spreading false information that serves no purpose but to divide based on one political agenda is foolish and shows a lack of logic. “Screech”

        • Screech

          Hey guy
          First of all, appeals court judges are appointed. More judges on the 9th have been appointed by a democratic president, but that doesn’t mean the judges are democratic or liberal. How’s that for “lack of logic” ? But let’s say they are “liberal” as the op believes
          He still failed to mention the elected leaders of Arizona are overwhelmingly republican. Unlike appeals court judges, Arizona lawmakers are actually elected partisans. I only filled in the “rest of the puzzle” that the initial poster didn’t mention. I’m the one who has shown it’s a bipartisan attack
          ………DAM Boy! You like to pick a fight with everyone

        • nomore

          Both of you need to stop. I could spend the rest of my days on earth happily without hearing republican this or Democrat that.

          As for fighting with “everyone” … That’s just you being dramatic.

        • Friend of RSOL

          I agree, though, that liberals have joined the whole “tough on crime” bandwagon when it comes to crimes they consider particularly heinous.

          We need to address concerns about harm to children and women – but focus their attention on prevention and treatment before a crime takes place, and diversion and rehabilitation post offense, rather than harsher and harsher criminal sentencing.

          Since when have liberals been in favor of mandatory sentencing? It shocks me to see people gunning for the ouster of Judge Persky and demanding mandatory sentences after the Brock Turner case. Why can’t these issues and crimes be approached from angles other than more jail time? How is calling for people’s “heads” (whether perpetrators or judges) a valid way to create policy? Why should retribution be the only form of justice? How about education, training, community involvement, diversion, treatment – why should mandatory sentencing and throwing out judicial discretion be the only answer?

        • Timmr

          Well, Leno was one liberal on the Senate Public Safety Committee who voted for the mandatory minimums for raping an unconscious person, very strongly for it in this case. It happened at the same hearing for AB 2569. That is why more people need to show up at these meetings if at all possible. Thankfully, a few of the opponents of AB 2569 also bravely stood up and also opposed the rape bill.
          I don’t value the terms liberal or conservative anymore, on the issues that don’t reach the corporate media, like foreign military involvement and criminal justice, there is no real difference.

  2. DavidH

    anyone still believe it’ll be a cake-walk through the 9th circuit…

  3. Kris Klein

    My question is how did this guy stay under the radar for so long? I believe he was truly ignorant of the law because officials failed in their duty to warn him that the law retroactively applies to all offenders. You’d think he would have gotten a letter or something from the convicting court back in 83 regarding the new changes. Now since he went so long (33 years) they figured he had to know something about the regisration regiment so state officials just threw the book at him. 3.5 years for an offense that didn’t involve any jail time. Pretty sad however you look at it

  4. Timmr

    They still believe in “frightening and high” in that neck of the woods.

  5. Lake County

    Even using logic and the law, it’s not going to be so easy to end the registry. It will take years of public education and many smaller wins in court to make changes. Don’t expect any judges to be willing to make major changes to registration anytime soon. The public will clearly crucify any judge that stands up for our constitutional rights. Just look at what has happened to Judge Persky.

  6. nomore

    Don’t let this bother you… the 6th won’t be the only ruling like it’s kind. I’d wager we’ll get more judges/rulings going our way very shortly.

  7. I can't wait to die

    Even this court used the magic word “… that Arizona Court of Appeals was not unreasonable in holding that the statute’s punitive efforts failed to outweigh its regulatory purposes.” PUNITIVE

  8. I can't wait to die

    Maybe perhaps it is time we all rally to get a DUI hit list where they can’t live within 2000′ ft. of anywhere that servers alcohol, etc… instead of attacking the SOR lets get more people placed on more hit lists then perhaps it might wake people up. after all drunks have injured and killed more children than any other group combined. thus if it saves one child.

    • Lake County

      A DUI registry will never happen. Too many politicians and law enforcement drink and drive.

      • ms

        Exactly! Just ask the ex-wives of law enforcement individuals. I have heard the stories first hand. Many of them count on being let slide if/when they get pulled over for suspicion. Above the law…

  9. Tobin's Tools 2.0

    Here is video of the oral argument, so you can see these judges — in all their great majesty — uphold Justice Anthony Kennedy’s “freighting and high” lie in Smith v. Doe:

    https://youtube.com/watch?v=NUqp5-JJCnA&ebc=ANyPxKoTeVuKnMo-Dvm4zPWA84Qw0OmrWNZlPo4ai1Fm8mN-q4ts5zss74yqsnEUiowHGV90e87s

    • Harris

      Everyone go to this YouTube video link and click thumbs down for the 9th US Circuit coming to a bogus conclusion.

      • 72FLH

        just did , what a bunch of crooks , the smith case needs to go down , these judges are hiding behind it like its law of the land , if they were going by the law of the land it could have never became a law at all

      • confidential

        I just disliked the YouTube video above as well. 5 dislikes it shows. What a bogus conclusion by the Ninth Circuit. For some reason, I was expecting more from this supposedly “liberal” court.

        • 72FLH

          we are no longer dealing with liberals , whole new critter , maybe some of the other band of crooks will do it right ? seemed to me that the one judge did ask so interesting things , but she got cot with her pants down and had none of those things in the suit , and it seemed like she was unsure how to argue the case , bless her heart , to stand in front of power freaks that stink to high heaven is a feat all its own

  10. anonymously

    The Sixth Circuit is more Republicans than Democrats, as you said, 4sensiblepolicies. Yet, the makeup of the 3 Judge panel that made the decision in the 6th Circuit was 1 Republican appointed by Bush, 2 Democrats, one appointed by Carter and one appointed by Obama in 2011. I agree with the sentiment you expressed. However, Judge Richard Posner, appointed by a Republican, but considered more a moderate now I guess, said that , but later apologized for a few months ago, the Constitution is worthless and should not even be studied by law students.

    • Screech

      Thank you!
      If people are going to play politics, let’s bring the microscope out of the cupboard and examine the real facts. The 3 judge panel who made the Michigan 6th circuit court decision were appointed by Democrats. It doesn’t necessarily mean the judges are democratic or liberal but they were appointed by one. And I hate the terms liberal & democratic used interchangeably. All Democrats aren’t liberals just as all Republicans aren’t conservatives. That’s why I jokingly said Barry Goldwater’s Arizona which is long gone since the state moved away from Goldwater’s libertarian values in favor of John Walsh law and order family principled conservatives

      • anonymously

        Except the opinion was written by the one appointed by Bush. From what I wrote, I wouldn’t say that they were all Democrats. Also,Republican Barry Goldwater was tinged with racism for his opposition to the 1964 Civil Rights Act..Just a couple opposingly partisan observations to make here…

      • 4sensiblepolicies

        My intention in my original comment was not to agitate anyone’s nerve about whether liberals or conservatives are more apt to uphold the Constitution. I had hoped the take-away from my comment is that we need to be looking at the psychology that is rooted in these decisions.

        My point, which may have been lost by stepping into the political zone, is that the traditional legal principals don’t apply when it comes to ex post facto decisions against RC’s. Just saying we need to figure out what makes these judges tick. Can we find a common thread among these 6th Circuit Judges that made them go one way, and one among the 9th that made them go the opposite – when they are judging similar facts and supposed to be upholding the same principals?

        What makes this all particularly tricky is that when you start dealing with individual judges who believe there are principals that exceed their oath to uphold the Constitution, we need to understand the core reasoning. My observation was that I no longer blindly go along with a concept that one political bent or the other is more likely to rule in our favor.

        I will go back to my core argument that my belief is that we have, at least in the 9th Circuit, a Judiciary that is convinced that the value of the registry outweigh’s the Constitutional rights of the persons subjected to it. Whether this means they are liberal, democrat, socialist, republican or whatever – I don’t really know. Maybe John Walsh bought them all lunch one time.

        Who knows, but what I do know is that when the the bedrock legal tenets fall on deaf ears with certain factions of the judiciary, we’d better try to figure out what argument we can make that will lead them to the correct decision. And it needs to be figured out before this gets back to SCOTUS or we’re really going to be screwed.

  11. mike

    It is clear after watching the video, that the lawyer for the individual was very poorly prepared. I think with 30 minutes preparation, I would have been more knowledgeable and presented a better case. Same as to the attorneys in the Alaska case in 2003. Not hammering the validity of the recidivism rate claims, and shining a little light on the truth, I think in large part is why we now live with this nightmare.

    • mike

      Once again, the attorney for the state states again that part of the reason that having a registration scheme for sex offenses and not for murders is because of the high recidivism rate. Every time that any of these laws are argued, there should be factual data in the record of the very low rates of recidivism. Also and this is never mentioned, many of the reasons that individuals are on the registry do not project at all to a hands on offense later in life, like many of the juvenile offenses. The fact that the government can just state anything with no repercussions is unjust. I notice that the judges do not ask to clarify what is high rate either as it is universally accepted.

  12. Robert

    Quite fascinating to read 9th Circuit’s decision here in contrasted with their 2009 decision in US v. Juvenile Male. Are we to believe that because the age of this Arizona man was 18 at the time of his offense that Ex Post Facto is not punitive but if he were just a few months younger and qualified as a juvenile under the law that Ex Post Facto would now be punitive as the 9th Circuit found in 2009? Simply defies all logic and reason.

    United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009) decision:
    “The retroactive implementation of SORNA’s provisions will most certainly wreak havoc upon the lives of those whose conduct as juveniles offended the fundamental values of our society but who, we hope, have been rehabilitated. For these reasons, we conclude that the retroactive application of SORNA’s juvenile registration and reporting requirement violates the Ex Post Facto Clause of the United States Constitution.”
    link: https://www.courtlistener.com/opinion/1264863/united-states-v-juvenile-male/

    • mike

      Good catch. This should have been in the lawyer’s presentation that registration had already been decided as ex post facto.

  13. Chris F

    This was not a good case for Sex Offenders and overturning Smith at all.

    The lawyer was nervous and not prepared. She wasted valuable time repeating things and going off on issues that would not affect the case. She did not dispute the State’s lawyer bringing up recidivism being high for SO and not murderers.

    This was also a bad case because the S.O. apparently didn’t register just to avoid being arrested on outstanding warrants, after being registered somewhere else and knowing that he had to register when he moved. The judges won’t care to even look into the overall problem with registration being punitive for all when this case is about one individual trying to find an excuse not to do time for blatantly breaking the law to avoid getting caught for other warrants.

    If bad cases with unprepared lawyers keep getting to appeals and lose then we cannot overcome these setbacks any time soon.

    We need a good lawyer to cherry pick some good S.O. cases and argue them as well as what happened in the 6th circuit case….even then…we need more than just ex-post-facto challenged. We need the entire scheme challenged because nobody should have constitutional rights violated when they haven’t been determined to be threat in need of any civil regulations placed on them.

    There must be a similar case somewhere in 9th circuit court like in the 8th court:
    ************
    U.S. v. DAVIS•452 F.3d 991, 995 (8th Cir. 2006)

    Federal law requires the district courts to consider the “nature and circumstances of the offense and the history and characteristics of the defendant” when crafting a special condition of supervised release. See 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); cf. United States v. Heidebur, 417 F.3d 1002, 1004-05 (8th Cir. 2005). That inquiry must take place on an individualized basis; a court may not impose a special condition on all those found guilty of a particular offense.
    ***********

    If you can’t slap a generic list of special conditions on someone that is on probation or parole based solely on an offense, how can you do it to someone that has completed their sentence and supervision and should be free to live their life?

    • Kris Klein

      I figured there was more to this story. This guy was convicted of a sex crime nearly 30 years ago. Even if he wasn’t required to register, you’d think he would have inquired about it over that time period. This was simply a case of ignorance of the law. Not registering to avoid warrants fills in the rest of the pieces. But even that was a stupid on his part. My guess is the warrants we’re not worth 3.5 years in prison.

  14. mike

    Chris F excellent points. Good lawyers and a good case and check every box.

  15. Kris Klein

    I haven’t heard this question addressed. Suppose a person like this Arizona man did avoid registering for nearly 30 years. Do states have some type of amnesty provision for offenders who haven’t registered for so long and they decided to walk into a cop shop to to come clean & register? Kinda of like the pregnant women who drop there unwanted babies at a hospital are immune from prosecution.
    Maybe I’m just dreaming. Instead of offering offenders immunity, the cops probably arrest them on the spot and send them off to be prosecuted and sent to prison for many years

    • Timmr

      There are no incentives in registration to do anything right, it is all disincentive*, threats of pain due to loss of freedom or livelihood, in other words, punishment. If this was truly regulation, the desire to punish would not be a factor only the general public welfare, only what works would be a factor, including incentives maybe like getting off the registry early for good behavior or programs to help former offenders to get jobs and stay in stable relationships.
      *The COR is kind of a positive incentive, though obtaining it is like shoving the camel through the eye of the needle. Few can even apply, and they keep shrinking that number down.

  16. James

    Hummm…Timmr…incentives, that is really smart of you…and would be good social policy.

    I will keep this argument in mind.

    Best Wishes, James

  17. Tuna

    Agree with the prior comments about the attorney being unprepared and this being the wrong plaintiff to bring such an appeal. Each time one of these judgements, for non-sympathetic plaintiffs, happens, it makes the task at hand that much more uphill. Not impossible, just more difficult. I wish these attorneys would choose their battles carefully, and prepare accordingly.

  18. David

    azdailysun.com/news/local/imprisonment-for-failure-to-register-as-sex-offender-upheld/article_9a48051c-9bc7-5501-84e9-f0639dbd90c1.html

    Seriously?!! This decision is insane. How is this NOT punishment?? Oh, because its “Public Safety”?? “Public Safety” with no validation, no supporting research, no supporting evidence…… Only instinctive “feel good” emotional appeal.

    (In theory, judges are supposed to be some of the best and brightest. In theory. So, dear Arizona general public, if others assume you are a bunch of radical, knee-jerk, unthinking conservatives, this is one reason why: because of decisions like this made by 3 of AZ’s “best”.)

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