General Comments June 2017

Does anyone know if your Static-99R score can be adjusted?

I was convicted a little over 3 years ago. When it happened I was just 2-years shy of turning 35, which meant I got a +1. That +1 gave me a total of 4 which currently is the threshold for a few things like the app to get off the internet. I’m also concerned my score might place me into tier 2 of the tiered registry currently going through the California assembly.

Under the older Static-99, I would’ve been a 3, and the guide also allowed for adjustments due to time passed. The new coding rules state there are no currently defined rules for such adjustments. It seems unreasonable that had my conviction been today I’d be rated a 3, but because it was earlier, I’m now a 4. And the fact that I completed probation with flying colors and am now past that age threshold doesn’t seem to matter, isn’t right (then again, what is about the registry as a whole?) There seems to be zero logic here with a world of consequences as a result.

(I bet there are some people out there in the same position as me but worse as their +1 due to their age now gives them a score of 6 which is the “very dangerous” mark and automatically places you into tier 3).

How does one find out what their static 99 score is?

Does anyone know what the status is on any challenge to IML? It seems like everything has just stopped.

I had heartening discussion with a gentleman today. He is 80 years old and his wife pass away to months ago. When he was 15, he dated her when she was 14 and they were together until her death. It was a sweet story with lots memories. I keep thinking if it was 65 years later he would be RSO.

I relocated to a new county for work last month. When I tried to update my registration I was told I should be receiving a letter from the DOJ relieving my of requirement to register and that they were unable to register me as I was no longer in the system.
Two weeks later I received the letter and it says the DOJ has reviewed my record and determined that I no longer need to register in CA.
I didn’t petition for release from the requirement and the conviction was from out of state. Anyone else have this happen? I didn’t think this was even a possibility.

Well here it is after almost ten hours of working on it. Let me know what anyone thinks. Thanks……I know it’s a lot to digest but this is what I believe has to be in it….

EIGHTH CLAIM
(Separation of Powers Doctrine and Bill of Attainder)
1. From a society whose punishment for commission of a felony was death, our society has evolved to reflect our increased collective sophistication and social progress. The prohibition of bills of attainder has also progressed to include more than just capital sentences.
2. Part of the history that has remained is the continued focus on “legislative enactments that ‘set a note of infamy’ on the persons to whom the statute applies.” Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) (citing United States v. Brown, 381 U.S. 437, 453-54 (1965) (holding that a statute is not a bill of attainder where it “incorporates no judgment censuring or condemning any man or group of men”)).
3. The reputational tarnish of being labeled a felon will no doubt make normal life challenging. Most if not all job applications ask applicants whether they have been convicted of a felony and if so to describe the circumstances surrounding all convictions. See, e.g., Book Byte Application for Employment, http://www.bookbyte.com/employment/forns/bbapplication.pdf (last visited Feb. 20, 2010).
4. Aside from the disclosure requirement there is normally language that suggests a person would not be automatically disqualified from employment on the basis of a felony conviction, but that each conviction would be evaluated individually on its own merits, and that nondisclosure of a conviction would result in automatic disqualification from consideration or termination from employment. Id
5. Despite such language, common sense dictates that a felon has a more difficult time getting certain employment than someone of equal qualifications without the conviction.
6. However, add to it the additional classification as a sex offender and not only does it damage one’s pecuniary opportunities, but it also harms one’s ability to have interpersonal or intimate relationships.
7. Therefore, it should be with great care and due caution that we designate a person with such a destructive label.
8. It is important to distinguish between a narrowly constructed sex offender registration system designed to protect the public, and hastily crafted legislation that casts its net so wide that it captures offenders whose predatory behavior or criminal intent was never proven. Compare GA. CODE ANN. § 42-1-12 (Supp. 2009) and IOWA CODE ANN. § 692A.1 (West 2003) (neither statute distinguishes between different sex offenders based on their committed offense), with California Proposition 83 codified in CAL. PENAL CODE § 290 (2009) (identifying classification of sex offenders based on the offense committed and perceived threat to society in the future).
9. A successful challenge to the latter through the Bill of Attainder Clause would serve what this country was built to preserve and protect Justice. In order for a legislative act to be struck down as a prohibited bill of attainder, it must satisfy the Supreme Court’s two-part inquiry: (1) whether the act specifically names or identifies an individual or group; and (2) whether the act inflicts punishment within the meaning of the Bill of Attainder Clause. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 473 (1977).
10. Generally, there is support in case law to analogize prior group classifications that resulted in findings of bills of attainder to certain types of restrictions that are placed on sex offenders as a class.
11. In Brown, the Court found that section 504 inflicted “its deprivation upon the members of a political group thought to present a threat to the national security,” Brown, 381 U.S. at 453.and, therefore, members of the unpopular Communist party were an easily identifiable group.! Congress did not enumerate characteristics that it wished to eliminate from government service but identified the group as whole, which constituted prohibited legislative fact finding. Brown, 381 U.S. at 456; see also id at 464 (White, J., dissenting) (“The legislature may focus on a particular group or class only when … it is common knowledge that all, not just some, members of the group possess the feared characteristics and thus such legislative designation would require no legislative fact-finding about individuals.”).
12. While the specificity requirement had not yet been articulated, the Court’s findings in Brown are consistent with a finding of specificity. See Brown, 381 U.S. at 461 (finding that the Act was not exempted from being a bill of attainder just because it inflicted its deprivation “upon the membership of [a group] rather than upon a list of named individuals”).
13. Sex offenders as a group are analogous to Communists for two main reasons: first, society and, by extension, legislators consider both groups undesirable and a threat to public safety;’ and second, much of the legislation does not enumerate which characteristics it is trying to avoid but subjects all who are convicted of any “sex crime” to bear the same burden. Because of the complexity and individual intricacies within this area of the law, in order to survive an equal protection challenge, the legislation must apply equally; but by applying equally it unjustifiably includes individuals who neither are nor ever were a threat to public safety.). For more on the Equal Protection Clause see U.S. CONST. amend. XIV, § 1.
14. Furthermore, the position that legislation directed at sex offenders will satisfy the specificity requirement is strengthened because, unlike members of a political party, who could, if desired, escape the detriments of party affiliation, a sex offender cannot escape his or her classification. Escapability, though not determinative, is a probative factor in the Court’s analysis in Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 850-51 (1984).
15. Factoring in escapability in this context, the trapping nature of one’s sex offender status more closely resembles the Cummings/Garland scenario, than that of Selective Service. Compare Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 288 (1866) (mandating that before petitioner could resume his profession he had to take an oath which was impossible for him to subscribe to honestly), with Selective Serv., 468 U.S at 850-51 (men who had their federal aid money withdrawn for failure to register with the selective service could escape the deprivation by simply registering late without penalty). The factor of escapability has been considered for both the specificity purpose and the punitive inquiry for the purpose of the bill of attainder analysis. Brown, 381 U.S. at 457 n.32.
16. Additionally, assuming arguendo that those who would be critical of sex offenders meeting the specificity requirement base their objection on Nixon, where the Court found it possible to create a legitimate class when there was unilateral and voluntary action, their objection can be distinguished. See supra notes 98-100 and accompanying text.
17. The creation of a legitimate “sex offender class” does not result when a person commits a crime of a sexual nature because, unlike Nixon who entered into the agreement to destroy presidential materials willingly and knowingly, many offenders commit acts that they do not know are sex crimes that would subject them to registration and other sex offender requirements. See supra note 15 and accompanying text.
18. Notwithstanding the firmly established principle in criminal law that ignorance or mistake of law does not constitute an excuse for the crime, the Nixon Court by continuing their analysis even after finding a marginally met specificity prong impliedly created an exception for the bill of attainder inquiry. See supra note 100 and accompanying text (Perhaps with guilt already decided, the Nixon Court thought the bill of attainder safeguard was important enough and the punishment prong difficult to satisfy on its own, that is was not unwise to allow even a marginal group through to the latter analysis.). Furthermore, as a matter of policy, certain sex offenders should be allowed to prove punitive intent because otherwise they are subject to such a disproportionately severe legislative response for a “victimless” crime (e.g., a consensual sex act with a peer who is under the age of consent; adult-adult prostitution). See supra note 134 and accompanying text.
19. As a result, the specificity prong is likely satisfied; therefore, the success of the constitutional challenge turns on whether the legislature seeks to inflict, or in fact does inflict, punishment. See supra note 173 and accompanying text. “Since virtually all legislation operates by identifying the characteristics of the class to be benefited or burdened, it is not clear that the specificity requirement retains any real bite.” BellSouth Corp. v. FCC, 144 F.3d 58, 63 (D.C. Cir. 1998).
20. The punitive nature of a legislative enactment can be found according to one of three tests: (Moreover, the Court in Brown clearly stated the proposition that punishment can serve several purposes. Brown, 381 U.S. at 458.7.)
21. Historical; to meet the historical test, the punishment inflicted by the legislative act must be one that has historically been associated with bills of attainder, or more often in this country, bills of pains and penalties.
22. Functional; the functional test asks whether the type and severity of burdens imposed by the law at issue can be reasonably said to further any non-punitive legislative purposes.
23. Motivational; the motivational test is an inquiry in to the legislative record (including legislative committee hearings and debates) to see if there is evidence of a legislative intent to punish. See supra notes 111-115.
24. Additionally, the Lovett Court’s investigation into the legislative background going back some eight years prior to when it heard that case is illustrative of the importance of the surrounding context and circumstances to the analysis of punitive intent of the legislative act at issue.
25. To begin, the Nixon Court relied on the “infamous history” of bills of attainder to flesh out the “deprivations and disabilities so disproportionately severe and so inappropriate to non-punitive ends that they unquestionably … fall within the proscription of [the Bill of Attainder Clause].” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 473 (1977).
26. Another legislative punishment that has become part of the American bill of attainder jurisprudence is legislative bars on participation in specified employment or professions. Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852 (1984). “A statutory enactment that imposes any [such] sanctions on identifiable individuals would be immediately constitutionally suspect.”‘ Nixon, 433 U.S. at 473.
27. Generally “scarlet letter” laws, if enacted, along with current residency and employment restrictions inflict three of the most traditional punishments under bills of attainder, other than death: the use of shame, a ban against practicing a profession, and banishment.
28. First, most sex offenders are subject to tremendous embarrassment and shame that is associated with meeting the legislative requirements for sex offenders, whether the sentiment flows from the community being notified when they enter a new area or from having a specially issued license plate, or a specially marked passport.
29. Moreover, along with residency restrictions several states and local communities have enacted employment restrictions intended to keep sex offenders away from schools, daycare facilities, playgrounds, public swimming pools, video arcades, recreation centers, and public athletic fields. ALA. CODE § 15-20-26(a), (g) (LexisNexis 2005 & Supp. 2009); FLA. STAT. ANN. § 775.21(10)(b) (West 2005 & Supp. 2010); GA. CODE ANN. § 42-1-15(c)(l)-(2) (Supp. 2009); IDAHO CODE ANN. § 18-8327(1) (2006); IND. CODE ANN. § 35-42-4-10(b) (West 2006); MICH. COMP. LAWS ANN. §§ 28.733(f), 28.734(l)(a) (West 2004 & Supp. 2009); OKLA. STAT. ANN. tit. 57, § 589(A) (West 2004); TENN. CODE ANN. § 40-39-207(a) (2006 & Supp. 2009); VA. CODE ANN. § 18.2-370.4(A) (2009).
30. Everyone would agree that there is a rational basis for prohibiting a child offender from employment at many of these places because most sex offenses committed against children are committed by individuals who have a prior relationship with their victims CTR. FOR SEX OFFENDER MGMT., MYTHS AND FACTS ABOUT SEX OFFENDERS I (2000), available at http://www.csom.org/pubs/mythsfacts.pdf.
31. However, the ban on employment extends out to create a zone around the forbidden areas, working in effect to prohibit sex offenders from engaging in many professions. Jobs that require workers to work at new locations on a regular basis such as plumbers, electricians, and construction are now off-limits to convicted sex offenders because of the risk of inadvertently entering the restricted zones. Downtown areas, the place of business of many white-collar workers, are also often off-limits to prior offenders because with just one daycare facility located on one floor of a high-rise building an entire city block could be forbidden. The practical effect of the restrictions is sex offenders will be relegated to agricultural work on the outskirts of the community. If that is not feasible, then unemployment is the natural consequence of these restrictions.
32. Furthermore, sex offender residency restrictions, both intentionally and sometimes unintentionally, have largely resulted in banishment from the community.
33. Next, application of the functional test requires some interpretation of its linchpin-a finding of a non-punitive legislative purpose. Such legitimate non-punitive goals have included: encouraging draft registration, guaranteeing the availability of evidence at criminal trials, preserving historical records, and encouraging competition in formerly monopolized markets.
34. The test requires one to establish that the legislature’s action constitutes punishment and not merely the legitimate regulation of conduct. See Nixon, 433 U.S. at 476 n.40 (Moreover, it is established that “punishment is not restricted purely to retribution for past events, but may include inflicting deprivation on some blameworthy or tainted individual in order to prevent his future misconduct.”).
35. However, “where there exists a significant imbalance between the magnitude of the burden imposed and purported nonpunitive purpose,” another way to disprove non-punitive purpose is through a showing that “less burdensome alternatives” are available. Foretich v. United States, 351 F.3d 1198, 1221 (D.C. Cir. 2003); see also Seariver Mar. Fin. Holdings v. Mineta, 309 F.3d 662, 677-78 (9th Cir. 2002) (considering whether there existed any less burdensome alternatives by which the legislature could have achieved its purpose). Sex offender statutes, often written in haste to meet the public call to action, are not carefully tailored or narrow enough to be effective. See Pamela A. MacLean, Challenges Grow Over Sex Offender Laws, NAT’L LAW J., June 9, 2008, available at http://www.justiceflorida.com/2008/06/articles/floridacriminal-lawyer-ronald/national-law-joural-challenges-grow-over-sex-offender-laws/ (discussing how sex offender legislation gets passed quickly without considering better alternatives).
36. The challenge in the sex offender context is that the law in this area is fueled by media attention and public opinion.
37. This moves the law very quickly, and most times legislative bodies can put forth a very colorable non-punitive purpose without having to show that the non-punitive purpose can be achieved by the enactment. One example of the problem is registration and GPS monitoring of the most dangerous sex offenders. GPS monitoring would serve a legitimate regulatory function; however, such a scenario normally does not occur because the extremely violent sex offenders do not get released from prison and thus are not subject to these legitimate regulatory safeguards.
38. Nevertheless, it is still possible to reach a favorable finding of punishment under the functional test. This is especially true given that the nonpunitive aims must be “sufficiently clear and convincing” before a court will uphold a disputed statute against a bill of attainder challenge. BellSouth II, 162 F.3d at 686.
39. A copious amount of recent and reliable research has exposed that residency and employment restrictions especially have failed to meet their proposed legitimate goals, and as such, should remove the impediment for finding that punishment was in fact its ultimate aim.
40. The most recent research on the subject of sex offenders tends to point to the conclusion that many of the sex offender regulations, especially those restricting where sex offenders can live and work, have no affect on recidivism rates, and actually do more harm than good because sex offenders cannot achieve any level of stability.
41. It should be significant that research shows the legislation is not working to serve its ends. In light of that fact, the severity of the burdens which sex offenders remain subject to are unduly disproportionate to the purported non-punitive purpose of the enactment, and what would be left should be a bill of attainder. See Nixon, 433 U.S at 476 (“Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decision makers.”).
42. It would be hard to imagine that legislation that continued to inflict deprivations on people would remain immune from a bill of attainder challenge once the legitimate purpose relied upon when putting it forth was shown to be ineffective. See Foretich, 351 F.3d at 1221 (“[W]here there exists a significant imbalance between the magnitude of the burden imposed and purported nonpunitive purpose, the statute cannot reasonably be said to further nonpunitive purposes.”); see also Consol. Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 354 (2d Cir. 2002) (holding a statute to be a bill of attainder where “the legislature piled on a burden that was obviously disproportionate to the harm caused”).
43. Lastly, the motivational test’s inquiry centers on legislative intent as evidenced by the legislative record, “timing of the legislation, as well as specific aspects of the text or structure of the disputed legislation.” See Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 855 n.14 (1984) (stating that a court must inspect legislation for a congressional purpose to “encroach[] on the judicial function of punishing an individual for blameworthy offenses”). The motivational test is not determinative in the absence of “unmistakable evidence of punitive intent.” Flemming v. Nestor, 363 U.S. 603, 619 (1960); see also BellSouth II, 162 F.3d at 690 (“‘Several isolated statements’ are not sufficient to evince punitive intent[,]” and cannot render a statute a bill of attainder without any other indicia of punishment. (quoting Selective Serv., 468 U.S. at 856 n. 15)).
44. Intent to punish does not need to be express through a formal announcement in a legislative hearing. Nixon, 433 U.S. at 480. However, it is unclear where the high water mark is-where a court would find a bill of attainder in the absence of a rich legislative record evidencing punitive intent.
45. However, in the context of sex offender regulations, the legislative records often are replete with statements similar to that of one legislator who expressed: “sex offenders are the most reviled people in society … [;] [t]hey’re one step above terrorists; there’s no political downside to cracking down on these folks.” Scott Henry, Life in the Shadows, CREATIVE LOAFING, July 19, 2006, http://atlanta.creativeloafing.com/gyrobase/life-inthe-shadows/Content?oid=987533.
46. Many of the legislative statements in the current milieu regarding sex offenders reflect the same sentiments of contempt and scorn that were held against Communists in the United States during the McCarthy era; Compare American Masters, Arthur Miller, McCarthyism, http://www.pbs.org/wnet/ americanmasters/episodes/arthur-miller/mccarthyism/484/ (last visited Feb. 20, 2010) (Senator Joseph McCarthy publicly accused hundreds, if not thousands, of people of being communists or communist sympathizers. Though many of the allegations were proven untrue, the process saw many getting their passports taken away, while others were jailed for refusing to give the names of other communists. “The trials, which were well publicized, could often destroy a career with a single unsubstantiated accusation.” His over-zealous campaigning ushered in one of the most repressive times in 20th-century American politics. Today, “McCarthyism has entered American speech as a general term for . . . using accusations of disloyalty to discredit an opponent [and] subverting civil rights in the name of national security.”), and Brown, 381 U.S. at 450 (Communists were likely to “initiate political strikes” against the United States Government), with President William J. Clinton, Regarding the Passage of Megan’s Law (radio broadcast Aug. 24, 1996) (“Nothing is more threatening to our families and communities and more destructive of our basic values than sex offenders who victimize children and families. Study after study tells us that they often repeat the same crimes. That’s why we have to stop sex offenders before they commit their next crime, to make our children safe and give their parents piece [sic] of mind.
47. The Court determined that many of those statutes were punitive and prohibited by the Bill of Attainder Clause.
48. Furthermore, the test seeks to address “the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge-or, worse still, lynch mob.” Nixon, 433 U.S. at 480 (citing United States v. Lovett, 328 U.S. 303, 316 (1946)). Nevertheless, in this case the Court felt that the noticeable absence of legislative history to suggest a punitive intent was indicative of non-punitive intentions and strongly undercut one of the major concerns that prompted the prohibition against bills of attainder: “the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge-or, worse still, lynch mob.” Id. at 480 (citing the Brown Court’s citation of Alexander Hamilton’s concern “that legislatures might cater to the ‘momentary passions’ of a ‘free people, in times of heat and violence.'”). See Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994) (acknowledging that a legislature’s “responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals”).
49. The fear is especially real because sex offenders incite the passions and outrage of the public.
50. For legislators in highly publicized areas of law, “the promulgation of criminal laws affords an irresistible chance to align themselves with the victims of crime and against the criminal element, [which is] a compelling political symmetry accentuated in modem times by the soundbite imagery of the media.” See Wayne A. Logan, Democratic Despotism and Constitutional Constraint: An Empirical Analysis of Ex Post Facto Claims in State Courts, 12 WM. & MARY BILL RTs. J. 439, 495 (2004); see also DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 157 (2001) (“TV has changed the rules of political speech … with its soundbite rapidity, its emotional intensity, and its mass audience-has tended to push politicians to be more populist, more emotive, more evidently in tune with public feelings.”).
51. In such an emotionally charged environment there is political pressure on legislators to support sex offender bills despite the constitutional questions raised; they do not want to be viewed by their constituency as “soft,” or by their colleagues or peers as sympathetic towards sex offenders.
52. Therefore, the motivational test would likely be satisfied because such evidence reaches the concerns that this test seeks to protect against.
53. Finding of both specificity and punishment paves the way for successfully challenging a legislative act as a bill of attainder, where the legislature makes a determination-normally reserved for another branch of government that inflicts deprivation on sex offenders as a class. See United States v. Brown, 381 U.S 437, 464 (1965) (White, J., dissenting) (Referring to the majority’s holding, White stated: “[The statute] is invalid as a bill of attainder because Congress has engaged in forbidden fact-finding about individuals and groups and has thus strayed into the area reserved to the judiciary by the Constitution.”). Under our Constitution, Congress has full legislative authority to weed dangerous persons out of places and positions where they could be harmful to others or the country, but the task of adjudicating which individuals are to be targeted must be left to other tribunals. Id. at 461.
54. It is not appropriate for a legislative act that affects sex offenders to be considered any less punitive in nature simply because of the fact that the legislation is enacted with a preventative aim. See id. at 458 (“One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment.”).
55. However, any constitutional challenge must overcome a court’s general reluctance to declare a statute or law unconstitutional. See Brown, 381 U.S. at 462 (indicating the Court “is always reluctant to declare that an Act of Congress violates the Constitution”).
56. The novelty of bills of attainder as well as some gaps left in case law make this challenge particularly demanding. They are novel because up until now no court has adequately applied the bill of attainder to sex offender regulations. The gaps in case law refer in part to the fact that this would be a case of first impression no matter where it was heard; the court’s exact analysis and answers to interpretational questions is unknown.
57. Thankfully, our Founders wrote rich commentaries explaining the purpose of this prohibition. See THE FEDERALIST No. 47, at 373-74 (James Madison) (Clinton Rossiter ed., 1961). James Madison wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Id. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866); see also id at 290 (citing John Hamilton’s History of the Republic of the United States). “A bill of attainder is a legislative act which inflicts punishment without judicial trial.” Cummings, 71 U.S. (4 Wall.) at 323). It includes “legislative acts which take away the life, liberty, or property of particular named [or easily ascertainable] persons [or group of persons] because the legislature thinks them guilty of conduct which deserves punishment. U.S. v. Lovett, 328 U.S. 303, 317 (1946).
58. Looking at these commentaries can help make sure that the ends are served when applying the Bill of Attainder Clause to modem day legislation.
59. An ambiguity exists as to the meaning of the phrase “legislative determination without judicial trial.” The phrase could mean the subject of the legislation must never have had a judicial trial when the legislation punished them, or it could mean there was no trial relative to the specific punitive legislative act at issue.
60. The first meaning would refer to one who had a trial of guilt by a court, which of course would encompass all convicted criminals. This interpretation construes the Bill of Attainder Clause too narrowly, and leaves certain groups at the mercy of future legislation without judicial redress. Despite prohibition against ex post facto laws, many sex offender regulations apply retroactively, thus leaving those affected with no remedy. See Smith v. Doe, 538 U.S 84, 103-04 (2003) (holding that forcing sex offenders who completed their sentences before the new law went into effect to register their whereabouts at regular intervals, including the posting of personal information about them on the Internet, does not violate the constitutional prohibition against ex post facto laws because the burden imposed serves a public safety purpose, and therefore does not constitute punishment); see also Adam Walsh Act § 102, 42 U.S.C. § 16901 (2006). The Act’s Declaration of Purpose states: “In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this Act establishes a comprehensive national system for the registration of those offenders[.]” Id. The act the goes on to list seventeen victims of sex crimes by name, ranging in ages from five to thirty-one over a twenty-one year period from 1984-2005. Id. Only four of them were attacked by perpetrators who were repeat or career offenders. Id. Some of the names, which received the most media attention, include Megan Kanka (“Megan’s Law”), Jessica Lunsford (“Jessica’s Law”), Elizabeth Smart (found alive), and Samantha Runnion; 5,500 mourners attended Samantha’s funeral (she was five years old at the time of her murder). Id Clearly, the affects of such tragedy reach thousands of people. The fact cannot be ignored that legislation like this Act is often fueled by the public outcry for change. The difficult question is: do seventeen victims spread over twenty-one years justify such a heavy-handed response, and if so is the response constitutional? (Congress passed the Adam Walsh Child Protection and Safety Act of 2006, which imposes new registration requirements on previously convicted sex offenders).
61. A possible alternative explanation is that “without the protection of a judicial trial” means it is outside the scope of the legislatures’ powers to pass acts punitive in nature that affect a group, after their initial trial of guilt, without a new judicial determination as to whether the act will or should affect them. However, the policy interest of judicial economy would likely not be served by an interpretation that would require a new judicial trial every time the legislature wanted to create a new law that affected the rights of certain identifiable groups. Thus, a more probable meaning of the phrase is somewhere in between: one that allows the Clause to function as a sieve and not an impenetrable barrier.
62. The Framers did not intend the Bill of Attainder Clause to allow a legislature to stigmatize one’s reputation and seriously impair one’s chance to earn a living, all outside the purview of judicial interference; See United States v. Lovett, 328 U.S. 303, 314 (1946); Cummings v. Missouri, 71 U.S (4 Wall.) 277, 288 (1866) (“The constitutional prohibition [of the Bill of Attainder Clause] was intended to protect every man’s rights against that kind of legislation which seeks either to inflict a penalty without a trial or to inflict a new penalty for an old matter.”). rather, their intent was for it to guard against excessive and overstepping legislative authority consistent with the Constitution’s central theme to separate powers. Therefore, a broader interpretation of the phrase is proper.
63. Beyond just restoring rights to those who have unconstitutionally had them taken away, the bill of attainder challenge can combat another danger created by the poorly articulated and overly broad laws in this area.
64. The overwhelming myth in society is that most men who commit sexual offenses do not know their victim. The fact is that “90% of child victims know their offender, with almost half of the offenders being a family member. Of sexual assaults against people age 12 and up, approximately eighty percent of the victims know the offender.” California Department of Justice, Office of the Attorney General, Facts About Sex Offenders, http://meganslaw.ca.gov/facts.aspx (last visited Feb. 20, 2010).
65. Dr. Gene Abel, director of the Behavioral Medicine Institute of Atlanta, a professor of clinical psychiatry at both Emory University and Morehouse School of Medicine, and a national expert on the treatment of sex offenders believes that residency restrictions intended to control rogue sexual predators like Jessica Lunsford’s killer “ignore[ ] a larger public safety threat, lulling people into a false sense of security.” Dr. Abel explains: “only 10 percent of child molesters are strangers …. About 30 percent of these crimes are committed by immediate family, another 30 percent by extended family and the final 30 percent by family friends and neighbors.” Id. (internal quotation marks omitted).
66. Therefore, he says the residency and registry restrictions do little to address the salient dangers. Another problem as he sees it is that the laws fuel harmful misconceptions. Id. “When we’re talking about child sexual abusers, the public perception is of a 50-year-old man hanging around a schoolyard . . . . In reality, the average age for a child sexual abuser is 14.” Id Scott Henry, Life in the Shadows, CREATIVE LOAFING, July 19, 2006, http://atlanta.creativeloafing.com/gyrobase/life-inthe-shadows/Content?oid=98753.
67. A 2003 Minnesota Department of Corrections Report found that “[e]nhanced safety due to proximity restrictions may be a comfort factor for the general public, but it does not have any basis in fact…. [Actually,] it appears that a sex offender attracted to such locations for purposes of committing a crime is more likely to travel to another neighborhood in order to act in secret, rather than [re-offend] in a neighborhood where his or her picture is well known.” MINN. DEP’T OF CORRS., LEVEL THREE SEX OFFENDERS RESIDENTIAL PLACEMENT ISSUES: REPORT TO THE LEGISLATURE (2003) (examining “level three” re-offenders and finding no examples that residential proximity to a park or school was a contributing factor in any of the sexual re- offenses noted).
68. One of the causes of the problem is that the media ignores empirical data, so its coverage of child abductions and sex crimes predominately depicts stereotypical stranger kidnappings, creating the appearance that this type of abduction is typical.
69. This misleads parents to overprotect there children from strangers, and ignore the potential for abduction by someone close to them.
70. Then, the public, armed with inaccurate and incomplete information, engages in political or grassroots efforts to ‘solve’ the social problem, [while actually] exclud[ing] the majority of victims.
71. It is not surprising then that many sex offender laws do not affect recidivism rates and effectively work as a placebo to calm the public’s fear.
72. The Bill of Attainder Clause is important to this area of the law because it can be a tool to curb over-burdensome legislation where many if not most of the common legal challenges have failed, resulting in laws that do not effectuate their stated purpose and people who bear the burden of those legislative missteps with little redress. Without this challenge, once the appeals process is complete these sex offenders are left without remedy: a proposition that the Framers did not intend. See United States v. Lovett, 328 U.S. 303, 314 (1946).
73. Current sex offender laws, while ostensibly enacted with the goal to further public safety, are neither essential nor balanced to meet that goal. Governments are charged with the duty to protect its citizens by taking the necessary and appropriate steps to safeguard them from violence.
74. The sex offender regulatory scheme, and by extension our Government, will continue to fail us until it focuses on the problem and responsibly acts to meet it.With statistics and research indicating a child is more likely to go missing because they are abducted by a non-custodial family member than a sex predator, it should be clear that this problem needs to be addressed.
75. Moreover, in the majority of cases, “abusers gain access to their victims through deception and enticement, seldom using force. Abuse typically occurs within a long-term, ongoing relationship between the offender and victim and escalates over time.”
76. In order to truly protect this nation’s children it is important for the Government to focus its efforts where it is needed-in the home. Government officials need to look past the discomfort of admitting that child abuse occurs within American families and must educate parents so they may effectively protect their children from harm; and if abuse does occur, the Government must provide resources for treatment in a way to encourage reporting.
77. Next, the Government needs to better address the tragic, albeit less frequent, occurrence when a violent sex offender re-offends.
78. The challenge here is not a minor one; it starts with relieving the problem of over-crowding in prisons so that offenders who belong in jail stay there. Then, parole boards must have the expertise and resources to carefully screen potential parolees as another way to prevent the release of those who exhibit signs or tendencies to re-offend.
79. Another way to reach this issue is to increase minimum and mandatory sentences for violent offenses.
80. Also, the Government must discard outdated notions that all sex offenders cannot be rehabilitated and invest in cost-effective rehabilitation programs.
81. Lastly, lawmakers must rely on sound research rather than sensational media to tailor legislation to meet the true needs of society.
82. The bill of attainder challenge will have a profound impact on two main sex offender statutes: residency and employment restrictions, and the lifetime registration requirement.
83. First, residency and employment restrictions would have to be considerably narrowed so the restrictions do not result in banishment or permanent bans of certain professions, except if they are proven to serve a legitimate regulatory purpose.
84. Dr. Levenson, a Lynn University professor who has studied sex crime policy for almost a decade, says that “[c]riminal offenders who have stable housing, stable employment and support systems in their lives … are less likely to go on and commit new crimes.” See JILL S. LEVENSON, SEX OFFENDER RESIDENCE RESTRICTIONS: A REPORT TO THE FLORIDA LEGISLATURE 2, Oct. 2005, available at http://www.nacdl.org/sl docs.nsf/issues/ sexoffender_ attachments/$FILE/LevinsonFL.pdf 261.
85. Secondly, the lifetime registration subjects sex offenders to a form of punishment that survives constitutional challenge because it is disguised as a regulatory scheme to protect the public, and subsequently continues on in perpetuity. Punishment not only includes deprivation of life, liberty, or property, but also deprivation or suspension of political or civil rights. See Cummings v. Missouri, 71. U.S. (4 Wall.) 277, 321 (1866)263.
86. It is hard to see how such a heavy burden is needed because those individuals deserving of such punishment should remain in jail and physically removed from society.
87. Registration of a sex offender’s whereabouts cannot prevent recidivism, and researchers say it does not even deter recidivism, so it is hard to see how a lifetime registration requirement is necessary or justified.
88. The success of the bill of attainder challenge will give sex offenders a voice to protect themselves from overreaching by the government in the same way as other “non-tainted” citizens.

well you see I’m still learning I thought that a Bill of attainder was the same as involuntary servitude which is a completely separate section in the constitution. sect.6 in CA const. and Bill of attainder is sect. 9.. so I now need a involuntary servitude argument so if you have any statting points or a good argument lets get it out so I can adapt it to fit my motion.

excellent comments Chris.you know it’s funny how our minds and opinions seem to come to the same decisions and opinions because those are exactly some areas I wanted to strengthen. I am not sure how this is going to work out since the judge actually stated during my sentencing that I had to register, but I am going to argue that the court made no judicial findings, reviews or records of my possible future threat for reoffense and without that judicial finding and no record that justifies my inclusion and the fact that I am subject to all the subsequent legislation being passed retroactively that it is a bill of attainder. I believe the argument stills has merit including also on the separation of powers issue as well.