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The Lingering Impact of Justice Kennedy’s Trumpesque Claim About Sex Offenders

Last week Robert Montgomery, a senior deputy attorney general at the North Carolina Department of Justice, seemed to have little success convincing the Supreme Court that his state’s law banning sex offenders from social media is consistent with the First Amendment. But at least one statement Montgomery made in defense of the law went unchallenged, even though it has no empirical basis. “This Court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” he said. “Even as late as 20 years from when they are released, they may recidivate.” Full Article

Related

Questionable Statistic Pervades High Court Sex Offender Cases

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  1. Chris F

    I’m starting to see a trend here.

    Let’s hope the Justice’s and their 3-4 legal assistants read news and know how to research and fact check now, unlike in 2002 and 2003.

  2. mike r

    this isn’t even my updated cases and what’s it saying????evidence, evidence evidence…

    When “particularly important” interests are involved in a civil proceeding, whether or not physical restraint is threatened, the United States Supreme Court has mandated a clear and convincing evidence standard of proof and stated that, “[n]otwithstanding ‘the state’s “civil labels and good intentions,” ‘ . . . this level of certainty [is deemed] necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ” Santosky v. Kramer, 455 U.S. 745, 756 (1982) (requiring clear and convincing evidence standard to support termination of parental rights), quoting Addington v. Texas, 441 U.S. 418, 425, 426, 427 (1979) (civil commitment); Woodby v. INS, 385 U.S. 276, 285 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization). A registrant’s liberty interest is seriously infringed in the creation of a long-term relationship with the police, in the potential criminal sanctions overshadowing that relationship, and in the stigma of notification – all penalties that are “more substantial than mere loss of money.” Santosky, supra, quoting Addington v. Texas, supra at 424.

    The court also too easily confines the State’s interest to a single dimension. While the primary purpose of the registration statute is to protect the public from sexual predators, the State also has “an interest in ensuring that its classification and notification system is both fair and accurate.” E.B. v. Verniero, supra at 1107. The State has no interest in making erroneous classifications and implementing overbroad registration and notifications. Id. See Doe v. Pataki, supra at (slip op. at 32).

    • Tom

      Way to go Mike r. And you almost hit the right questions about evidence and the SORAs. Here’s what is really illegal about Soras and no one talks about it and is especially relevant about evidentiary standards such as clear and convincing evidence. I know someone who is affected by these laws.
      A Sora is really a mental health law and diagnosis that presumptively predetermines a person is recidivistic, dangerous, and violent, and is and always will be a threat to the public safety. And they give you no probable cause hearing or individualized psychiatric or other examination but merely attach it to your criminal case facts. They do not require the court to have a clear and convincing standard to render its judgement or is automatically applied..
      Essentially your secured rights as a us citizen are forfeited through this illegal mental health law and deprives you of all of the protections of mental health laws. It is well established mental health law that mental health determinations are based almost exclusively on recidivism, dangerouness, and violence to yourself or others. Many states have enacted mental health commitment and supervision laws against persons with sex convictions using the same and identical reasons of recidivism, dangerousness, violence, and threat to the public safety. But I have never heard a court, or lawyer, or any person claim this or challenge the soars this way.
      So essentially you are placed under the custody and control of the state, and it is up to you to prove that you should not be on a sora or subject to its mental health law. You don’t get a jury trial, a probable cause hearing, any standard of evidence, you are not told you are being given a mental health status, and all the while they claim you are legally nuts. Lol.
      So you are basically enslaved, disenfranchised, denationalized, and they don’t even say you are in custody. You know there a numerous forms of conditional releases, court orders of protection, probation, injunctions parole, etc., and they have far less conditions imposed. Clearly you are under state or state agency custody and control, supervision, management, and guardianship which includes your mental health and usually for the rest of your life.
      And you bear the burden of proving you should receive a lesser form of it, but no matter what you will be on it. This is called illegal as hell and no person can be presumptively predetermined to have a mental health condition of any kind in this country. What’s worse is they say you are mentally incapacitated but give you no treatment or protection or care of any kind. I bet your state constitution and mental health laws say otherwise.
      Anyways this challenge will be on the way soon, and hopefully you can ask lawyers in this blog why they don’t raise these clearly illegal acts in their challenges, cause believe this, these are facts no one can deny. Good luck with all of those other challenges cause this is the real deal. Spread this around and ask why it’s not being used.

      • Timmr

        It is illegal because the legislators are doing the diagnosing, usually based on the testimony of one victim of a high profile, shocking but rare crime and the remedy applied to everyone, 94 % of the public accepting that as truth. It needs to go.

        • Tom

          Yea I bet you weren’t told your under their custody and control either, that alone is illegal according to due process and a reason to be released from a soras. Bottom line, These soras are not registration laws, they are mental health laws. But they don’t give you any of the benefits of a legal mental health act. This is a huge fraud and the sooner you all start looking at it this way the sooner this nonsense will go away, at least after your sentence.
          When this is recognized as nothing more than an illegal conditional release with custody, supervision, and management, and guardianship, you will see how quickly it will disappear.
          Especially since you have been denied any relevant procedural or substantive due process related to the presumptively and predetermined mental health determination without an actual diagnosis from a mental health expert or manual of any kind.
          Look, do you think a judge can say someone can automatically determine your mental health legally, without a probable cause hearing and individual psychiatric testimony, and a trial and jury. I don’t think so.
          Due process of law requires that you receive notice, an opportunity to be heard, and a method by which to challenge any state or other custody. Now look at your state health laws and see how many failures of due process they didn’t give you compared to other civil commitment, supervision, and outpatient, mental health laws.
          Damn, they don’t even give you treatment but claim you are a mental health risk. Check it for yourselves, this is the only way to end these laws.

  3. mike r

    in order for the SCOTUS to ignore the facts and evidence they would have to overturn countless of their own decisions……its so obviously ingrained in our jurisprudence that it’s ludicrous not to argue that issue in every case…ludicrous….

  4. Bob

    I wonder if there is a way to send the factual statistics and these news articles to the legal assistants and clerks of the Justices.

    • Joe123

      Exactly ^ I have been emailing recent articles, especially the Slate article released this week, to whoever I could think of in the public eye. Educating these misguided people is #1. I cannot believe that the defense attorney from ACLU in the recent case regarding GPS monitoring completely did not bother to counter the false claim from the prosecutor about the high recidivism rate. Of course, they lost the case. It’s worrisome when your fate is being placed in the hands of lawyers who are not as competent as you’d expect.

      • Tuna

        Anticipating, being ready, and prepared to respond to the recidivism claims should be part and parcel of every attorney litigating one of these cases. Amazing that these lost opportunities to refute it and get it in the record continue.

      • Ricky

        I agree, I don’t know about every other attorney. But it I was an attorney, I be fighting tooth and nail for every case whether the case is big or small (with total preparation). These big cases, I would be pulling some hairs savagely in that court room – Because I hate to lose and love the satisfaction of winning – especially when there is a grave injustice at stakes. But, if I do lose, Then I lose, but not without giving you a nasty beating session of my own. Make you feel it the next day. Either you fight in court to the very end or don’t even bother to show up or just look for a more passive job working in a cubicle at a private office, stapling envelopes or something.

  5. Timmr

    The low reoffense rate certainly undermines the regulatory justification for notification laws. But citizens aren’t cattle that you can cull the whole herd because one has found an infectious desease in one or more of the herd. Cattle don’t have the Bill of Rights, so they marginalize this group enough to be on the level of stock. Property to manage. Treating people as a herd, instead of having individual assessments, should be the real constitutional wrong being addressed, not just how many in the defined group is dangerous and the number needed to make a law jump from punitive to civil. I believe that is an attainder, no matter how the numbers lay out. Nonetheless, the public views registrants as dangerous animals and if it can be shown there is only a few bad apples, the whole group looks more non-threatening. That’s how bigotry works. Then people may not feel the need for these laws so much. That’s about all we can hope for at this time. It is too much at this time for people to think former sex offenders retain any rights to individual assessment.

  6. Chris F (Important Note)

    One thing I want to point out about the Packingham and other recent cases:

    The hate mongers are starting to go with a new replacement for “frightening and high” that is just as misguided and dangerous if not refuted at every chance. They also use this to try to squash the LOW RECIDIVISM numbers we state.

    That new statement is, “under-reporting of sex crimes”.

    The lawyers and supporters of the sex offender registry will claim that the low recidivism doesn’t take into account how 80% (or whatever outrageous number they try to use) of sex crimes go unreported, so our previous sex offenders must account for that and actually have much higher recidivism than studies claim but just aren’t getting caught.

    This, however, can be easily refuted and should be at every chance:

    1) 85% – 95% of sex crimes against children are committed by a family member or person known to them
    2) Even without the Registry, those convicted of sex crimes against children are forever kept out of teaching, daycare, healthcare, and other jobs with access to children by the FBI database available to those employers and even sealed records do not hide the conviction from them.
    3) Someone convicted of a sex charge against a minor most likely will not be able to keep friends, family, or co-workers in the dark about those charges and therefore will not be in a position again to take advantage of a known minor.
    4) There would be less incentive for any sex assault victim to keep silent when a previously convicted sexual predator commits another sex crime (It isn’t like the victim wouldn’t be believed, or that the criminal will be looked at sympathetically).

    All of this points to the fact that the group of people least likely to commit a sex offense against a minor that does not get reported are those previously convicted of a sex crime.

    Please use this in any discussions where you see it being brought up.

    • Those who speak of out their dark side....

      There are a lot of underreported things and that claim could be laid on anything….trying to use that is reaching by those who use it. If there is no correlation made, then the statement should not be stated without factual backup.

      • Chris F (Important Note)

        True, it could apply to anything.

        However, they do have questionnaires and pretty large studies out there indicating sex crimes in general are very under-reported. In our favor, one of the reasons they could be under-reported is how much damage a sex offender label and harsh sentence will do to a family that leads them to sweep it under the rug and the victim to not be a cooperative witness. Unfortunately, that leads to more victims but is another reason the registry is bad.

        Obviously, other crimes without such devastating consequences and embarrassment of the victim are reported more frequently.

        I’m just pointing out where the tide is turning, and what straws our opposition is grasping at now that the low recidivism numbers could finally be accepted. They won’t just give up without one last stab at twisting facts and baseless accusations.

        • Spot on Chris F

          Completely agree Chris F. Was not downplaying what you articulated very well. Completely agree with your reply posting also.

    • Timmr

      There is also remorse. Remorse never figures into anything, begause of the myth we can not feel remorse. It is also the mental peculiarity in believing that the crimes that most shock our conscienses must therfore repeat themselves. In actuality, I wonder if the worse the crime, the greater the remorse, and the less the chance of reoffense. It is certaingly true of the most heinous crimes of child molestation and murder, the crimes on the low end of reoffense scale.

      • Chris F

        That’s true too.

        Of course, those offenders that lose most family and friends and can’t get their lives back on track due to the registry probably account for those that still commit the sexual crimes again. Legislature is creating the very monster they claim they want to get rid of.

        • Timmr

          I don’t remember who was the founding father who said punishment should be swift and moderate. Our punishment is long, mean spirited, drawn out and in many ways progressively punitive. At some point anyone will say, why bother being good. You’ll just get punished for that, too.

        • New Person

          unfortunately, it is deemed “regulatory”, not punishment.

          fortunately, compelled service is prohibited unless to punish a crime.

          unfortunately, no one wants to address that the regulatory scheme is compelled service to the state(s) that is not considered punishment.

          really unfortunate, your compelled service as a person no longer under punishment custody is not compensated at all. That, in itself, is a form of slavery. Registration is a huge business as it creates special jobs specifically against registrants such as new police positions, persons running the website, persons creating the website, court related fees for not registering, private websites, as well as law makers using registrants to secure their futures in government.

          Justice Roberts has no specialization in sex offenses as I don’t see a doctorate’s degree in psychology with an emphasis on sex offenses, but he had the audacity to change the law “as a membership”. As a Supreme Court Justice, his job was to only judge on the law, not insert himself into the law. He is no expert aside from judging if the law is constitutional or not.

          Not surprising, Roberts did list all the potential dangers for registration and called them conjectures. Looking back from today, it’s not conjecture that registration is punishment. He should pay for such an audacious, assertively false claim. The US government should pay for such a mental abuse on a population for telling them they are not able to be rehabilitated at all, which is why some states have life time registration; and why California took the away that relief from registration within 1203.4, where a case is dismissed and you’re deemed rehabilitated… except if you’re a sex offender. That’s quite discriminatory, tbh.

          People are making money off of registrants and registrants are making nothing for their service outside of punishment custody (meaning as a free person). Does a free person have constitutional rights? Does a free registrant have constitutional rights? Why is there a difference when the prefix is they’re both free individuals?

          Which brings us back to Timmr’s point, and Janice’s as well… these rules create an environment to recidivate. That’s why Janice and team won the re:Taylor case for housing restrictions for parolees in San Diego. Frank’s life was in jeopardy due to the registry. Isn’t all life equal? Apparently not. Especially with John Roberts’ expertise on the matter of sex offenses and the lack of substantiated metrics.

  7. Read the attached Bloomberg article too if you have time

    Reading the Bloomberg BNA article attached above is quite interesting. The individual who is quoted in the article in favor of the NC law and believes the high and frightening data has her head in the sand because anything else would possibly undermine her position in society, her credibility and her income. Here, here is more Kool-Aid for you to drink and believe the tooth fairy is real also.

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