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IN: Judge orders 3 off sex offender registry

Three men who moved to Indiana and were required to put their names on the state’s sex offender registry are likely to win their lawsuit that claims they wouldn’t face that requirement had they lived in Indiana all their lives, a judge ruled, ordering their names removed. Full Article

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  1. Holy Cow!

    A bit of sanity!! Refreshing!!

  2. mike r

    and so it begins…I believe this is the first of its kind ruling that actually prevents the registration requirements against anyone ever…naysayers pay attention….it can’t be done… it wont go away, its here for good, we can’t prevail except on baby steps…by this time next year we will see an enormous amount of decisions like this and within two years the registry in its current form is abolished and a new scheme will be in place that only applies to people who the government can prove thru clear and convincing evidence standard pose a threat to the public and that it’s narrowly tailored and that the state shows thru evidence actually achieves a states legitimate state interest …its happening there’s a light at the end of the tunnel and guess what it isn’t that far away anymore….registration is impossible to uphold with the right arguments….

    • AJ

      I agree. I think this is the start of thousands of chips and cracks in the facade known as SORNA (and its state-level children). Justice moves and culture changes slowly, but nth seem to be trending in our favor.

      What I find curious is these decisions (this one, Snyder) are coming from the “closed minded,” typically religious, flyover land, not from the liberal coasts. Seems backward, but I’ll take it! Perhaps these judges read the law and Constitution as they’ve been written, not as the judges think they should mean. Hmm, now if we could only get a SCOTUS replacement who holds that belief like Scalia did. Oh wait, nevermind….I think we did. (Hopeful fingers crossed.)

      –AJ

    • Michael

      “I believe this is the first of its kind ruling that actually prevents the registration requirements against anyone ever …”

      I don’t know about that. The PA Supreme Court has been laying waste to that Commonwealth’s SOR laws. Because of all the lawsuits there, PA’s SORNA law, or example, ONLY applies to those convicted of, incarcerated or on supervised release for a crime requiring registration on or after 12/20/2012. Tommy Lee Jackson v. Commonwealth opened the door to credit for being on a registry in another jurisdiction after that exception was removed from the current law – the court ruled not giving credit violates the equal protection clause of the U.S. constitution, and eluded to a violation of PA’s equal protection clause, but no ruling on that because counsel for defense didn’t bring it up. Other current [ex post facto] cases [Commonwealth v. Reed, Commonwealth v. Gilbert] should have decisions by years end.

      It takes time, and attorney’s willing to take up cases.

      ….

      • AJ

        Wow, glad to see some progress and wisdom in the judiciary. Though only state level, neighboring states’ justices will almost certainly take notice. The court saying the law only applies to persons convicted after a certain date is a de facto statement that the law is subject to ex post facto, i.e. punitive! Because as we all know, if it’s regulatory and non-punitive, there is no ex post facto problem and they can retroactively change the rules willy-nilly.

        I really like the equal protection posture regarding credit elsewhere. I’m going to have to look at some of these PA cases and consider chipping away here in the last state with the Stars & Bars on its flag…

        –AJ

        • Michael

          Jackson v. Commonwealth is the case where the Commonwealth court held not giving credit on registry in another state violates the Equal Protection clause of the U.S. and PA Constitutions. It also suggested it violated the Full Faith and Credit Clause of the U.S. Constitution.

          http://caselaw.findlaw.com/pa-commonwealth-court/1741285.html

          Commonwealth v. Reed, v. Gilbert & I believe v. Ritz are cases the PA Supreme Court combined which challenge PA’s Meghan’s Law IV on ex post facto grounds. Oral arguments in Reed seemed promising for the defendant(s).

          https://www.youtube.com/watch?v=FI9O0igMs5Y

          Meghan’s Law IV came about after the PA Supreme Court found parts of Meghan’s law III unconstitutional.

          ….

      • AJ

        Here’s a helpful link that describes PA’s activities: http://ccresourcecenter.org/2016/05/16/challenge-to-sorna-retroctivity-reaches-pennsylvania-supreme-court/

        At the bottom there are also some helpful links to related articles. The “state courts question…” one has a litany of court cases pointing to ex post facto problems in the various SORAs.

        It’s drip, drip, dripping folks, but I think the flood of case law is piling up in our favor. The rabid legislators have overdone what SCOTUS affirmed in Smith v. Doe and CT DPS v Doe, and courts across the country are calling them out. SCOTUS is not deaf to what happens in state supreme courts, so even if none of the cases are in your particular state, you may well benefit.

        –AJ

  3. Distraught-Grad-Student

    I wonder if this decision could be used in the future to help those who are not required to register in a given state but would like to move to another.

    • Michael

      It does in PA [sort of].

      JACKSON v. COMMONWEALTH, No. 388 M.D.2014
      “Consequently, the PSP’s decision not to credit Jackson for the approximately six years he spent registering out-of-state is arbitrary and not reasonably related to the object of the Commonwealth’s sex offender legislation; therefore, the PSP’s application of the law violates the Equal Protection Clause of the United States Constitution.”

      At least in PA, you get credit for being on a registry in another state. If you moved to PA and your conviction required 15 years of registration, and you registered 20 years in another state, you’d not have to register in PA.

      http://caselaw.findlaw.com/pa-commonwealth-court/1741285.html

      ….

      • Chris F

        Wow, thanks Michael, I just found a nugget of very useful info to help my issue of moving to another state and being required to register, even after registration ends in my original state.

        The judges took the extra step of including a constitutional violation that the attorney did not bring up and therefore would not be ruled on. How nice of them to mention it though!

        It is a violation of the Full Faith and Credit Clause for a state to not recognize judicial proceedings and rulings in another state. I didn’t know this!

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

        So of you get off registration in the state the crime was committed in, you should be free to go anywhere in the US you want to without fear of further restraint. This is BIG for me, and I don’t know why it hasn’t come up more often!

        • Distraught-Grad-Student

          I googled about it and found this. Apparently the argument has been brought up and been shot down.

          http://www.merlinusmonroe.com/2013/11/22/the-sex-offender-registry-and-moving-out-of-state/

        • Interesting reading there Grad Student

          Thanks for posting that case addressing moving across state lines and RC registry laws.

        • AJ

          I suspect the problem lies with concept of SORAs being administrative and regulatory vs. punitive. Once it’s finally admitted to be punitive, I suspect the argument will change due to ex post facto, among other things.

          –AJ

        • Chris F

          Yes, punitive needs to be more widely established to trigger lots of constitutional challenges.

          Until we get more than just the 6th circuit on our side, judges will still brush off all challenges and claim the state has a “rational basis” to do whatever they want to, so they can.

          How it still triggers only “rational basis” and not “strict scrutiny” to interfere with jobs, raising kids, housing, travel, safety, and your reputation I’ll never understand. Especially when the durations of registration are arbitrary lengths of time not supported by any data!

        • PK

          Yes but the Nichols Decision provides more merit according to my Lawyer.

        • Chris F

          I’m not sure how the SCOTUS ruling in Nichols helps for moving between states.

          Nichols only addresses the fact that Nichols didn’t need to tell Kansas he was leaving since he was going somewhere other than a state requireing registration. The SORNA guidline was:

          “A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student”

          It didn’t require that he tell Kansas that he was leaving. I don’t think this ruling by SCOTUS will ever help any other sex offender unless the SORNA guidlines are simply mis-read by the states again, or they infer something from SORNA that is clearly not there.

        • Michael

          I wouldn’t think it would matter which state a person was moving to. It would be the state in which the person currently resides which mandates notification that a person is moving out of state.

          ….

        • Michael

          @Distraught-Grad-Student

          GA & PA are worlds apart. The courts in GA may not think that arguement holds water, but I don’t think the senior judge of the Commonwealth court of PA would have mentioned the Full Faith & Credit clause if he didn’t think that argument would not have had considerable merit.

          ….

      • AJ

        MS is a state that specifically says no credit for time in another state, which makes me scratch my head. If it’s the amount of time elapsed since the crime, then it shouldn’t matter where I spent that time. Likewise where MS resets the time clock if you’re incarcerated for ANY crime. How does my being jailed for, say, burglary have any impact on my rehabilitation from what SOR event? Hmm….kinda sounding like punitive action and/or parole/probation again, dontcha think? Or dontcha? Such a farce.

        –AJ

    • New Person

      If you’re not required to register, then you aren’t on a registry.

      Is there something else that you’re not disclosing?

    • PK

      Perhaps this Case Decision could help those RSO’s who are forced to register in their State of Conviction, even though they do not live in that State, work in that state, nor pay taxes in that state. Nor have they lived, worked, or payed taxes in their State of Conviction- for years. Moreover, the RSO isn’t even required to Register in the State he has been living in for years.

      • AJ

        Just curious, what state imposes that? If you move and are no longer a temporary or permanent resident, you are no longer subject to any of the REGULATIONS of that state, and since SORAs are considered regulatory, they must be included in that. Punitive acts, however, can follow you while on probation/parole.

        Even if you are on probation/parole and do an ICOTS transfer, the regulatory portion is either a) ended or b) enforced by the receiving state. (The receiving state taking over such things is part of ICOTS…and if they cannot do it, they are obligated to inform the sending state.)

        This seems like an easy challenge, with perhaps Federal Court being the better (and presumable way more expensive) route. Either it’s regulatory and they can p*ss off, or it’s punitive, which would be wonderful case law for thousands of us!

        –AJ

        • Chris F

          New York and Florida keep you on their registry even after you move to another state. You can’t get off of it, so you’ll still be denied government housing loans, get the future passport identifier and still come up on the national registry as an easy way to deny you jobs. It’s been upheld in New York cases because they claim the state has the right to protect it’s citizens if you come back for even a short visit or their citizens travel to your state that doesn’t register you.

          It really sucks. The judges look for any excuse to keep the registry viable, and re-write the rules on what is considered a fundamental right to avoid strict scrutiny, so the state doesn’t even have to prove the registry does anything good. Really judge? It’s not a fundamental right to have access to a job, government housing assistance, housing, raising a family, or protecting your reputation?

        • PK

          I’m one of those NY State RSO’s despite the fact that I haven’t lived there in 17 years.

          My NY Attorney defended the RSO in Doe vs. O’Donnell, in which the guy lived in Virginia and was not required to Register, but yet NY insists on keeping him on the Registry.

          My case is identical to that, and we were going to be Joint Plaintiffs in a New Federal Lawsuit.

        • AJ

          Aha, I get it now. PK had talked about being forced to register in Conviction State, though living elsewhere. That made it sound to me as though one has/had to keep going back to the Conviction State to stay in compliance. One is not “forced to register”, rather one is remains on the registry. That’s a different color, and I suffer likewise in MS (where they even keep you on there if you die prior to your requirement ending! Apparently they fear afterlife RCs).

          I don’t foresee any of the “never forget” states changing anything unless/until forced to by a judge. How far have cases gone in the state justice systems? Perhaps the state Supreme Courts would accept the argument that there’s no valid reason to keep the data, as the laws require you to re-register each time you enter? It certainly is total BS.

          Do they do this even if the conviction has been expunged? If so, there may be some argument there that could be won, based on a divided Supreme Court ruling here in MS in 2015.

          –AJ

        • AJ

          The Doe v. O’Donnell case has a bit more to it than what is being discussed here. Doe was convicted in NY, then moved to VA for some period of time. VA granted removal from their registry based on their regulations. (During this time, I am pretty sure Doe was not continuing to register with NY.) Once Doe moved back to NY, he was again subject to NY’s regulations and Tier time-limits, regardless what VA did. Heck, even if Doe’s original conviction was in a state other than NY and NEVER had a requirement to register, NY could require registration. That’s the constant thorn in every RC’s side, being further/again “regulated” after/despite meeting all requirements at conviction.

          –AJ

  4. mike r

    you know what you don’t see happening in this case that is extremely important?? the state cannot and doesn’t even try to justify these laws with their false statistics or the public safety arguments that have been used in every other case….they’re thru and they know it..its just a matter of time now and the right case…

  5. 1984

    What I see, is an Indiana judge upholding the law as it was written. It is refreshing that the miss-application of their registry laws were not just painted over. I always hope the number of humans out number the psychos. What I hope is not some unscrupulous law writer starts up an amendment. This case is an important litmus test.

    • New Person

      The judge avoided the “ex post facto” argument.

      But this is confusing to me. So if a person who was involved with a minor in California, but, let’s say, in Nevada where 17 is the age of consent, then does that person have to register if it is not a crime in NV? Or let’s say NJ where I thought it was 16 years of age?

      huh…

      • AJ

        The SORA laws are usually written that you must register if required in the state of conviction and/or if the crime would registering in the current state. So if your state of residency doesn’t have the first part, you may have standing. Otherwise, SOL on the SOR.

        –AJ

  6. Chris F (paging Mike R!)

    Can someone provide links to the arguments and data on this one, I may need it.

    I have similar yet different circumstances. My time to register will end soon but almost any other state I move to will require registration to be re-instated. That shouldn’t be possible for a half dozen reasons that violate the constitution. Another state that doesn’t have jurisdiction over my original crime shouldn’t be able to add any sort of punishment under any circumstance, or even a “regulatory measure” without some type of due process.

    Mike R, in case you missed my other post in General, look at this for use in your filing:

    https://www.bu.edu/pilj/files/2015/09/19-2RileyNote.pdf

    It is called “TRIAL BY LEGISLATURE: WHY STATUTORY
    MANDATORY MINIMUM SENTENCES VIOLATE THE
    SEPARATION OF POWERS DOCTRINE” by KIERAN RILEY.

    You can easily replace the words “statutory mandatory minimum sentences” with “SEX OFFENDER REGISTRY and any laws written against those on it” and you’ve got numerous perfect arguments with referenced SCOTUS cases that demonstrate how the registry and all laws referencing it violate the separation of powers.

    I don’t know why more Sex Offender cases don’t challenge the separation of powers problem the registry created. Judges are supposed to judge, assess punishment, rehabilitate, and protect the public…not politicians when it comes to the judicial process.

    • Son of Liberty Child of Freedom

      Chris F

      Keep in mind 2 additional Convincing & Persuasive Arguments:

      1:
      Trial by Legislature is a “Classic Bill of Attainder” projected upon a Minority Group by the Oppression of the Majority which creates the Nexus to the 2nd. Cause for Prayer For Releaf.

      2.
      The Minority Group is affected by De Facto Legislative Action & Ad Hoc Logic creating a “Disparate Impact” it is Irrefutably evidenced by empirical facts that negate a Just Reason, the Minority Group suffer innumerable Losses by such illicit activity.

      In Addition we need keep in mind and Contrast that:

      A “Disparate Impact” is unintentional, whereas a “Disparate Treatment” is an intentional decision to treat people differently based on their race or other protected characteristics.

      The Disparate Impact burden of proof is a easier Test to meet!

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

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

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

      Current Application:

      When Analogized with The Registries Laws the similarities do not fall apart or defuse easily.

      https://en.m.wikipedia.org/wiki/Texas_Department_of_Housing_and_Community_Affairs_v._Inclusive_Communities_Project,_Inc.

      “The disparate impact theory has application also in the Housing Context under Title VIII of the Civil Rights Act of 1968, also known as The Fair Housing Act,. The ten federal appellate courts that have addressed the issue have all determined that one may establish a Fair Housing Act violation through the disparate impact theory of liability.

      The U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity, the federal government which administers the Fair Housing Act, issued a proposed regulation on November 16, 2011 setting forth how HUD applies disparate impact in Fair Housing Act cases. On February 8, 2013, HUD issued its Final Rule [1].

      Until 2015, the U.S. Supreme Court had not yet determined whether the Fair Housing Act allowed for claims of disparate impact. This question reached the Supreme Court twice since 2012, first in Magner v. Gallagher and then in Township of Mount Holly v. Mount Holly Gardens Citizens.

      The Supreme Court seemed likely to rule that the Act does not contain a disparate impact provision, but both cases settled before the Court could issue a decision. The federal government appeared to pressure the settlement in one or both cases in an effort to preserve the disparate impact theory.[15][16][17]

      On June 25, 2015, by a 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Supreme Court held[7] that disparate-impact claims are Cognizable under the Fair Housing Act.

      In an opinion by Justice Kennedy, “Recognition of disparate-impact claims is also consistent with the central purpose of the FHA, which, like Title VII and the ADEA, was enacted to Eradicate Discriminatory Practices within a sector of the Nation’s economy.

      Suits targeting unlawful zoning laws and other housing restrictions that Unfairly Exclude minorities from certain neighborhoods without Sufficient Justification are at the Heartland of disparate-impact Liability…Recognition of disparate impact liability under the FHA Plays an Important Role in uncovering Discriminatory Intent: it permits plaintiffs to CounterAct

      Unconscious Prejudices and Disguised Animus that Escape Easy Classification as disparate treatment.” Under the Court’s ruling in Inclusive Communities, in order to prove a case of disparate impact housing discrimination, the following must occur:

      First, a plaintiff must make out a prima facie case, drawing an explicit, Causal Connection between a policy or practice and the disparate impact or Statistical Disparity.

      As Justice Kennedy wrote, “A disparate-impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.” Justice Kennedy also noted that “policies are not contrary to the disparate-impact requirement unless they are Artificial, Arbitrary, and Unnecessary Barriers.” [The Minority Can Prove!]

      Second, a defendant must have the opportunity to prove that the policy is necessary to achieve a valid interest. If a defendant can’t not prove that, then a plaintiff’s claim of disparate impact must prevail. [The Accusers Can Not Prove!]

      Finally, if a defendant has shown that the policy is necessary to achieve a valid interest, the plaintiff must then show that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” If a plaintiff cannot do so, then their disparate impact claim must fail.” [The Accusers Can Not Show Necessity]

      I speak Truth

      As Yehovah Lives, so should we

    • AJ

      Chris F, it’s specifically the “regulatory” nature that allows the states to impose the registration. Though things seem to be turning, the Due Process and Equal Protection claims as provided in the 5th and 14th Amendments have routinely been denied since it’s regulatory, not punitive. That’s the crux of the issue with SORAs; were it punitive, adding anything to the terms of conviction is ex post facto. In my case, punitive would mean I only have a 10-year requirement, whereas regulatory makes me have a 25-year, or maybe even life, requirement (the time frame hasn’t neared enough to find out which it is for me).

      –AJ

      • Chris F

        Even without challenging regulatory VS punitive, I believe SCOTUS said in Connecticut Dept of Public Safety V Doe 2003 that the registry had a better chance of being found unconstitutional if they challenged Substantive Due Process instead of Procedural.

        That win would only happen if the regulation (the registry scheme) infringed on fundamental rights and needed to pass “strict scrutiny”. Unfortunately, all courts lower than SCOTUS keep declaring every right we bring up as not being fundamental and therefore the states only have to pass “rational basis” review, which only needs the state to claim they have a reason but don’t have to prove it works. Somehow, we even miss “intermediate scrutiny” too. Yet, if anyone other than a sex offender has an issue that affects their reputation, getting a house, getting a job, or being able to travel then they get strict scrutiny review. /hmmmm

  7. mike r

    I hear you…I totally agree with you…that’s just another rock solid argument against the registry..its coming. I think Gorsuch is going to be good for us since he is a conservative constitutionalist and I know if the right case with the right arguments are presented it’s a rap…

    • AJ

      I completely agree that Gorsuch will serve us well. And if the right case comes along, you may well be surprised by Thomas. If you dig into his separate concurrence in Smith, you will see he concurred with a qualification. In other words, he seemingly isn’t wholly on board with the practice, but as presented and qualified, found it okay.

      Thomas is creeping out of his shell a bit more, showing his civil liberties concerns. Anyone needing proof of that just needs to do a search for “Clarence Thomas civil asset forfeiture” for any number of articles about his concerns about it. He’s becoming more Scalia-like in his thoughts, I think. A boon to those who love the Constitution as written, not as interpreted.

      –AJ

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