The stage is set. The Governor has signed the tiered registry bill into law, a law that opens a wide gap in the dam of California’s “Lifetime Registry for All”. A dam that was in place for 70 years. It is now our job to widen that gap.
The Tiered Registry will take effect in January 2021, about 3 ½ years from now. While it is truly unfortunate that those who will benefit from the “new” tiered registry will have to wait so long, the lengthy gestation period for the “new” tiered registry could provide us with opportunities to address that registry through both legislation and litigation.
First, legislation could and should be pursued during the next legislative session (2019-2020) which improves the tiered registry by broadening its benefits, especially to those convicted of non-production child pornography (CP) offenses. For there is no logical reason for, and no empirical evidence to support, the “new” tiered registry’s requirement for people convicted of non-production offenses to register for the rest of their lives.
There are additional problems with the “new” tiered registry that also need to be corrected such as the addition of people to the state’s Megan’s Law website due to a “high” score on the Static-99R at the time of their release. The Static-99R is a controversial testing instrument that produces flawed results such as scoring all gay men under the age of 25 as high risk. And even if the results of that testing instrument were considered valid, a score that is 10 years old or older is irrelevant because it does not reflect the results of post-conviction rehabilitation.
In addition, the “new” tiered registry requires a judge, when considering whether to approve a person’s petition for removal of the registry, to consider both pre- and post-conviction factors that are sure to result in prejudice against the petitioner. For example, the judge must consider pre-conviction factors such as whether the victim was a stranger and post-conviction factors such as noncriminal behavior. As written, this could mean that a judge must consider a ticket for jay walking and/or the late return of books to the public library. These factors must be modified or removed.
Second, litigation could and should be pursued to challenge the need for, and value of, a public registry in California. There are Constitutional issues, recent court decisions and empirical evidence to support such a challenge.
For example, the equal protection clause of the U.S. Constitution could be the basis for a challenge to why those convicted of a non-contact, non-violent offense such as possession of CP should be required to register for a lifetime similar to those convicted of multiple violent contact offenses against multiple children.
Another example is the ex post facto clause of the U.S. Constitution which prohibits governments from retroactively applying new laws that punish. There is a growing number of court decisions, including Does v. Snyder in the Sixth Circuit Court of Appeals, which recognize that the requirement to register as well as its collateral consequences are punishment and therefore cannot be applied to individuals convicted decades ago.
Finally, there is empirical evidence to support the fact that public registries do not increase public safety. In fact, there is even evidence that public registries may decrease public safety. There is also empirical evidence to support the fact that the rate of re-offense for those convicted of a sex offense is very low especially when they have lived outside of jail or prison for 17 years or more without re-offending.
The stage is set. There is much to do. Please join us by Standing Up – Showing Up- Speaking Up at monthly meetings, annual conferences, legislative hearings and more.
— by Janice Bellucci