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States Can’t Make Up New Laws to Punish Old Conduct Just Because They Call Them “Civil”

Article I, Section 10 of the Constitution provides that “[n]o State shall … pass any … Ex Post Facto law.” The Ex Post Facto Clause was incorporated into the Constitution to prohibit states from enacting retrospective legislation, which the Framers believed to be inherently unfair and contrary to the principles of limited, constitutional government.

Despite the Framers’ clear aversion to retrospective lawmaking, the Supreme Court has since adopted the view that states are uninhibited from enacting retroactive civil penalties. So long as a retrospective law contains a discernable legislative purpose and a “civil” label, retroactive application will not run afoul of the Ex Post Facto Clause.

Consequently, states have imposed increasingly burdensome retroactive penalties on convicted sex offenders under the guise of civil regulatory laws. Even after offenders have paid their debts to society, they continue to face excessive registration requirements and other onerous civil penalties. Full Article


Court of Appeals of North Carolina Decision

Amicus Curiae by The Cato Institute

Join the discussion

  1. CR

    The amicus brief of Cato Institute is an excellent analysis of the historical meaning of Article 1 Section 10 of the constitution, as well as the history and sad current state of jurisprudence regarding it. Definitely worth reading. Cato has nailed it with this brief.

    • Sean James

      Has anyone here ever heard the word “Revolution”…of course it’s unlikely to ever happen because today’s Americans are not going to fight back if they might lose their lives as a result. This dipite the fact that our founding fathers believed that such things as revolution were nessesary…even integral to the defence of liberty against a tyranical government that wants to deny said liberty from it’s people. Americans need to wake up and remember that “You are free only as long as I am”.

      • AJ

        @Sean James:
        “it’s unlikely to ever happen because today’s Americans are not going to fight back if they might lose their lives as a result.”
        You give the American sheeple way too much credit (rope?) with this statement. They are not going to fight back if they might lose their Xbox, Wi-Fi, Netflix, or iPhone!

        I’ve long said (even when I was SSS eligible) that a year or two of conscription (for everyone, not just males), as is done in many countries, would be good for our society. It would make better citizenry and it would provide needed labor and skills. Heck, it may even whittle away at the “independence” (read: selfishness) many seem to grow up having anymore.

        • Will Allen

          Completely agree. I also have said forever that I would love to see every 18 year old required to serve our country for 2 years. And then spend 6 months in prison. I think that would fix a lot of children who are currently being trained by their douche bag parents to be douche bags just like them. Something needs to be done to stop the devolution of America.

        • Notorious D.I.K. / Kennerly

          Tell me it ain’t so, A.J.! Milton Friedman: “General, would you rather command an army of slaves?” I say that this idea of enforcing “social cohesion” at the point of a gun amounts to the fundamental usurpation of our liberty. Please don’t pretend to tell me that you know better what I am to do with my life than me. Also, don’t presume to know that I owe the government one damned thing. For too many of us, the government is the cause of our suffering and has robbed us of our liberty. This issue is a libertarian litmus test and why, for example, John McCain was no libertarian. If you implement a compulsory “national service” requirement, then prepare for no little bloodshed and some unanticipated consequences.

          Also, one question: what happens to those who refuse to “serve?”

          This, from Nick Gillespie of Reason Magazine: “Pete Buttigieg’s National Service Plan Is a Really Bad Idea Whose Time Might Have Come”

        • CR

          “Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.”

          Whether apocryphal or not, this saying attributed to George Washington is something that I recognize as true. Who, after being subject to so-called “civil regulations” that impose severe limitations of liberty, retroactive or not, after punishment for offenses committed has already been served, could fail to agree?

          I am of the mind, as Diderot said so well, that “Men will never be free until the last king is strangled with the entrails of the last priest.”

          I don’t know if society can prosper, or even survive, without some amount of government, but I’m sure that liberty should be valued more than it is. Offenses are against people, not against the state. If the state is allowed to decide what punishment an offender must endure, then let it be done when it is done, and then let liberty be restored in full.

          Even with that conscession, l will remain forever an enemy of the state. But that’s just me.

  2. Joe123

    CIVIL laws should carry CIVIL penalties. End of story. You CANNOT call something CIVIL while having a severe criminal punishment in place.

    Where the hell has any Ounce of Common Sense gone from the Judges?

    I know prosecutors would sell their own children out if it meant to get a Conviction and Lawmakers would lie to thousands of people while knowingly doing this, but JUDGES should know better than accept this B*llshit which is 200% what it is.

    • jw

      I’m sure attorneys do not advise clients that bargained pleas do not bind the state in any way. Would this be a potential avenue for competency of counsel appeals? Certainly any attorney advising a client to accept a deal today would be negligent if they didn’t advise that the deal can change at any time.

    • Sean James

      Has anyone here ever heard the word “Revolution”…of course it’s unlikely to ever happen because today’s Americans are not going to fight back if they might lose their lives as a result. This dipite the fact that our founding fathers believed that such things as revolution were nessesary…even integral to the defence of liberty against a tyranical government that wants to deny said liberty from it’s people. Americans need to wake up and remember that “You are free only as long as I am”.

  3. AJ

    Fantastic! Yet *another* SORNA/SORA case presented to SCOTUS. As many have said for some time, at some point SCOTUS will have to take a stand post-Smith. That time appears to be dawning, if not yet in full light.

    Nice, too, that in addition to CATO’s amicus, NARSOL/NCRSOL and the Roderick and Solange MacArthur Justice Center (a human rights and social justice entity) also have filed amici. Hopefully a few more pop up on our side–and don’t be surprised if a group-amici comprised of a bunch of State AGs pops up to support NC.

    Looks like I have some Sunday reading on my plate. 🙂

    • CR

      All three of the amicus briefs that have been filed so far are worth a read. I read them this afternoon. The NARSOL brief and the Roderick and Solange MacArthur Justice Center brief were both more narrowly focused on specific aspects of the harm to the petitioner and to registrants and their families than the Cato brief was. All of them were well-written and made accurate and persuasive arguments.

      If SCOTUS is ready to revisit Calder v Bull, or at least Smith v Doe, this case seems like a good one to do it with.

    • Eric Knight

      Unfortunately, Price Club manager John Roberts, who is Chief Justice of the Supreme Court, got his court position MAINLY because of his performance in Smith v. Doe in enforcing the registry on us in the first place. HIGHLY UNLIKELY that, while he’s on the court, that SCOTUS will allow such a case that would directly NEGATIVELY impact Roberts’ signature legal accomplishment prior to his decision to keep Obamacare in place for good.

  4. TS

    There are going to be many, I believe, amicus briefs submitted in support of Bethea at SCOTUS. I know of another one that was filed for it from a state & national level org.


      The amicus briefs I hope they emphasized that this “CIVIL” registration laws are starting to including “other” crimes such as drug offender and violent offenders in Kansas. SCOTUS may turn a blind eyes on us, but if you started to include other classes of offenders (perhaps DUI), they may take the case more seriously…

  5. concerned

    this along with Florida just filed suit i think SCOTUS will have to finally rule on this blank price club membership check and i don’t see how on earth they could allow this BS to continue. heck just received a text on my phone that was similar to an AMBER alert about where to get food and water for hurricane victims in Florida and the life necessities are being distributed at a school where sex offenders are prohibited to be. smh!!!

  6. AJ

    OMG, what a serious beating CATO gives SCOTUS! They fired some serious broadsides, to be sure. They outright state that SCOTUS has completely destroyed the Framers’ intent behind Ex Post Facto. They also (correctly) lambaste the Court for creating a rubber-stamp situation (rational basis review, anyone?) where a legislature can cloak anything inside “civil” (which, BTW, CATO routinely uses in quotes to demean it), perhaps bury the law in the civil, versus criminal, code, and the courts will approve. I don’t think SCOTUS will ever overturn Calder because doing so will cause the entire structure of our governmental systems to crumble, but I do think CATO has made some incredible points that SCOTUS cannot ignore. CATO has given SCOTUS a proper shaming. Let’s see where it goes.

    As for NARSOL/NCRSOL, their amicus is good because it gives examples of the real-life harms these laws are causing day-in and day-out across the country. Some of those anecdotes are really saddening, but sadly they are not surprising. I think the best angle of attack NARSOL makes is the damage it does to the spouses, children, and other family members of the shamed-citizens (aka RCs). I think the employer angle has some merti, but good old SCOTUS can fall back on the tired position that nobody is entitled to a job. Hey SCOTUS, getting fired from a job, or never even hired, due to SORNA is not the same as saying I’m asking for a right to find and have a job!

    Finally, the RSMJC is good because it hammers away at residency restrictions. They, too, show the damage done to families, employment, and the near, and sometimes total, banishment suffered. As they point out, what better example of banishment does one need besides getting kicked out of your present and long-standing domicile?

    If the Justices decline to hear this and/or the other RC cases before them, they have absolutely no heart. They will show that law and stare decisis is more important than anything, and legislatures have free rein to run roughshod and rampant over any disfavored group. I don’t see how any judge/Justice can ignore the non-stop attacks–both physical and legislative–that are being carried out via “civil” laws. Somehow, some way, SCOTUS needs to put its foot down. It opened this can of worms; it’s not its obligation to clean it up.

    All in all, I think CATO’s paper will poke Gorsuch in the side to see if he’s truly an Originalist (and I think he’ll take the bait). Thomas is already on board with reconsidering Calder. RBG, who has seemingly never been fond of RC laws, is probably in our corner. Alito, as usual, will fall towards empowering the Government. The rest, I have no guess where they will fall.

    • CR

      After reading the CATO brief, I began to wonder what the broad effects on society would be to overturning Calder v Bull. It’s easy to see how legislative policy would be affected going forward, but how would society be affected by the invalidation of all existing retrospective laws? I’m not sure if that would be the result of overturning Calder v Bull, or even if there are any retroactive laws that are truly beneficial to society that would be affected. Most such laws seem to be related to taxation, conferring or withholding government benefits, or to making an end run around the constitution in order to punish and burden “sex offenders”. Enough said.

      So I started searching for evidence of retroactive legislation that has clearly benefited society. I haven’t gotten very far in that search and haven’t uncovered any so far, but in the process I came up with a couple of other papers on the history of Calder v Bull and discussions about the meaning of the constitutional prohibition on ex post facto laws, especially in the civil context, that I thought others might like to read.

      The Case Against Civil Ex Post Facto Laws, by Steve Selinger, Cato Journal, Vol. 15, Nos. 2—3 (FallfWinter 1995/96)

      Ex Post Facto in the Civil Context: Unbridled Punishment, by Jane H. Aiken, Georgetown University Law Center, 1992

      One thing I found particularly interesting, although most likely irrelevant in any consideration SCOTUS might have regarding Calder v Bull, was the footnote in the Cato paper on page 198.

      “Crosskey (1953: 349) indicates that the real motivation of the Calder Court to allow ex post facto civil laws was to grant bankruptcy relief for debtors, as one of the former Justices was in hiding and trying to avoid debtor’s prison.”

  7. “Static” Scam-99R

    Great blog article and Amicus Brief by CATO. By SCOTUS not having classified registration as a type of *criminal* punishment, sex registration is able to fit into a weird loophole that has given us what is Megan’s Law, as well as 290 registration, today. The Supreme Court, in having called registration a “civil” regulation, was acting rather dishonestly in its game of semantics. Remember, this is the same institution that upheld slavery, segregation, Japanese internment, and criminalization of gay rights for years. I hope I am wrong; but I get the feeling that SCOTUS will defend the sex registration scam for many years to come. Especially given that as an attorney, John Roberts—who is now Chief Justice—played an instrumental role in getting the Justices to declare sex registration as a punitive measure. How terribly would it look on Roberts, as well as the entire SCOTUS institution, to admit that what it decided in previous years was completely wrong. At best, the sex registration scheme will slowly morph into a mess of “risk assessment instruments,” tiering—as well as hurdles of “petitioning” requirements (as the trend seems to be moving to). It gives the illusion of (but not actual) progress. Again… hope that I am wrong.

  8. mike r

    Holly wow scotty. the cato group comes out swinging right off the bat. And hitting it. Right ofg the bat the bribg the constitution means both civil and criminal phrohibitions on ex post facto. I said this a long time ago. you cant have civil retroactive laws either, plain and simple. Just think, imagine they up the registration fees on your truck, they cannot make that retroactive, what about property taxes, nope can’t do it, all kinds of civil laws could not do it. What makes this any different? It all started with the stupid asssfd gun laws, think about it. That’s when the gov took that right without any safe gaurds or substantive due process at all.

    • PK

      “what about property taxes, nope can’t do it”
      What do you mean? They increase property taxes all of the time.

      • CR

        @PK, I think mike r means they can’t do it retroactively. Of course, the government actually can such things retroactively. Because of Calder v Bull, the government can make retroactive changes to tax laws because those are civil laws that, under current (1798) jurisprudence, are not considered to be prohibited by article 1 sections 9 and 10. It’s not especially common, but the government does do it.

        If mike r meant that the government would no longer be able to make such changes (like retroactively revising your property taxes) if SCOTUS acknowledged that the constitutional bar to ex post facto law means all laws, civil or criminal, I would agree.

        @mike r, read this for some examples:

      • mike r

        Exactly my point, they raise property taxes all the time, they do not make it retroactive and make everyone pay the new tax rates retroactively….Could not do it…

  9. mike r

    This Cato paper is really good, I like the fact they are attacking legislative intent. I am arguing that exact issue, and hard too. This is more ammo. I like civil compared to criminal and how it cannot matter. You know, I hear a lot of talk about Hendricks, like that was a major case when in fact that individual had seperate hearings both administrative and judicial. Just bolsters my argument for more due process, a matter of fact I did not even think to go, “hey he had all that due process and guess what? wait that was a civil regulation, remember.” Wow that never hit me until just now. That was a civil regulation and not considered punishment but Hendricks still had all that due process. I was arguing Hendricks just strengthened my argument but it should actually seal my argument. Why was he entitled all that due process on a “civil regulation” and I am not???? He may suffer more severe deprivation of rights but not much more. Anyways, love the Cato so far.

  10. mike r

    Man look at this. Read this carefully… If they had to require all this for the “civil” [regulation] commitment then they have to apply that to me as well or it runs afoul of substantive due process….
    “Did the Act’s civil commitment provisions, based on its definition of what constitutes a “mental abnormality,” violate substantive due process and double jeopardy requirements?
    No. Despite Hendricks’ claim that a certification of “mental illness” alone was too arbitrary to sustain a civil commitment order,>>>> the Court held that the Act met substantive due process standards by “””requiring considerable evidence of past violent sexual behavior and a present mental inclination to repeat such offenses.”””<<<< Furthermore, the Court held that since it required the release of confined persons who became mentally stable and no longer dangerous, did not speak of scienter, and lacked other procedural safeguards characteristic of criminal trials, the Act did not violate double jeopardy guarantees since it merely authorized "civil" rather than "criminal" commitments"
    Yeah I still think this is going to be one of my major arguments as well…

  11. New York Level 1

    I’m definitely grateful that Libertarian outfits like Cato and are out there promoting the truth that the registry is barbaric and cruel, I just wish the Left had a bigger mouthpiece and more drive to take up this issue too.

    When you read leftist theories and critique of crime and punishment, it absolutely leads to the conclusion that schemes like the registry are anathema to human liberation, and indeed any leftist who tackles sex crimes specifically makes that point.

    Indeed, leftist theory goes beyond the limitations of the Libertarian critique by making a historical, material connection between the oppressions of capitalism, the subsequent rise of authoritarian discipline of the working class via the creation of “unpeople”, bogeymen like ms-13, jihadists, and ‘sex predators’, used to justify and sell overly punitive carceral structures. Leftist theory tackles the underlying socio-political structure that gives rise to things like the registry.

    (I’m talking leftists, different from Liberals, at least liberals in power, who have been some of the biggest champions of constructing sex offenders, ms-13 and other “Others”.)

    The problem is that if we’re limited to just saying “x regulations, punishments, and provisions are unconstitutional” without working to correct the underlying social and political structure of talking about and creating underclasses and bogeymen, then absolutely the registry might be abolished only for some new form of social control and banishment to arise.

    • CR

      @New York Level 1, — “When you read leftist theories and critique of crime and punishment, it absolutely leads to the conclusion that schemes like the registry are anathema to human liberation, and indeed any leftist who tackles sex crimes specifically makes that point.”

      Can you give some specific examples of the people and theories you are referring to?

      • PK

        “any leftist who tackles sex crimes specifically makes that point.”

        Leftists don’t tackle sex crimes, they create new regulations every month for their ever expanding registry schemas.

        After all wasn’t it the ALL Democratic 9th Circuit who dismissed the IML Lawsuit?

      • CR

        @PK, let’s not assume that we know what he means by “leftist”. Labels by themselves don’t mean much.
        That’s why I asked him for examples of people and theories.

      • New York Level 1

        I guess the first place I would refer you to is Sherry Wolf’s “Sexuality and Socialism” from 2009. In it, she argues that sexual crimes must be evaluated on a case-by-case basis, among other proscriptions.

        Sarah Schulmann’s “Conflict is Not Abuse” also deals with sex crime hysteria and the misrepresentation of, well, conflict as abuse, and how to humanely and ethically deal with true abuse.

        Michel Foucault has an uneasy relationship within leftist thought but I think firmly belongs with us, and “The History of Sexuality” does a good job of deconstructing sex laws.

        Lisa Duggan had a really great interview on “The Dig” podcast (a leftist podcast) about “The Open Secret of Sexual Assault” (i.e. the elites can get away with it while poor/minorities are given outrageously punitive sentences for it)

        Similarly from Jacobin radio (another leftist podcast) this interview is awesome:

        And @PK, remember, I said that leftists are different than liberals.

        • Tim Moore

          Thank you for the list of authors. It is really refreshing to hear that. I find myself basically in philosophical agreement with what you said and have been arriving at the same conclusions. I have read Foucault, but not the others. Would like to learn more. You can email me at or just comment about this subject more here at this site.

        • David Kennerly's Deconstruction

          Tim, you may want to look at this Wikipedia page about Foucault:

    • David Kennerly

      ” leftist theory goes beyond the limitations of the Libertarian critique by making a historical, material connection between the oppressions of capitalism, the subsequent rise of authoritarian discipline of the working class” Or maybe libertarians have a completely different theory and believe that leftist theory is full of shit? That “capitalists” have nothing to do with America’s love affair with sexual puritanism? Or that, unlike the left, they did not become completely addled by the harsh and hateful regime of gender feminism which joined forces with cultural conservatives/religious fanatics to spread their vile poison? However, I do believe in giving credit where it is due and would include The Nation’s late Alexander Cockburn amongst those few leftists who stood bravely against the sweeping tide of puritanism that has, once again, washed over our land. Nevertheless, the most important players today in challenging that tide are, indeed, libertarians. So, in surveying the participants in this forum who, to this day, persist in their desperation to love one of the two dominant political parties while blaming the other for our terrible circumstances, I say “look at who IS supporting us!” It’s the libertarians. Perhaps that should tell you something about justice and where it might be found.

  12. mike r

    @CR I stand corrected, that is absolutely insane that SCOTUS has upheld such retroactive civil legislation. Cato is exactly right, this need to change. According to SCOTUS DMV can say registration is retroactive and everyone that drives would have to pay all kinds of back fees. That is just crazy talk. If I seem naive to this, I was. My logical thinking points to that it could not be done, but where is logic anymore, or where was it in the Calder case? This needs to be challenged with the same kind of logically examples such as the DMV example. You know SCOTUS does that crap all the time, “what if this was the case, or what if this applied this way, would it be constitutional then?” We need to use their techniques and thought against the court. I am sure there are thousands of examples like the DMV one where it would be ludicrous to say it can be done. IDK, I learn something new every day that just goes beyond logic….I can see the court making exceptions for extreme circumstances such as physical damage to a person or the environment, but other than that, should not be happening….

  13. mike r

    So that is crazy retroactive talk, so i can buy a house today and 30, 40 years from now the state can say “hey, we upped property taxes since the 30s and you have to pay us the going rate retroactively” Insane….I did kind of find that Cato was preaching to the court what the justices were already fully aware of though. Now I see why. The major issue and argument that I like is the intent argument. I think I can use their argument to bolster my argument that the court needs to do more on de novo review than just pass the buck to the legislature and cite precedent. Especially, like they stated, on a unpopular group with no political power as Chris has argued. I think we have made an astounding argument for legislative intent in my case and this will support my argument for sure…

  14. mike r

    You know, I think that might be a better way of attacking Calder. Instead of stating it is unconstitutional for all civil laws to be retroactive, it is only constitutional in extenuating circumstances and requires more due process than just stating, “this is retro with no notice and no due process to determine whether the law outweighs the presumption that no retroactive laws can be enacted. That is pretty much the point, no constitutional rights are absolute, it is the due process and the magnitude of that process, along with the weight of both civil liberties v public interest, that should be argued. That is the problem, just deferring to the legislature is unreasonable, and although it allows for a smoother gov and allows the states to control administratively laws, it cannot mean the ststes or feds have blank checks to pass any retroactive law just because it is called civil or criminal. I think that it could be argued better that for “any” retroactive law there must be due process or it runs afoul of the framers intent. Like I stated, imagine DMV raising reg fees and applying it retroactively, logically it should not be able to be done, but under current precedent, apparently it can. An argument as ridiculous as that may very well bring about change. Just as civil commitment in Hendricks, why should there be due process with that civil regulation but none on others. Just because of the magnitude of civil liberties that were in question? Well, how the hell do they know the magnitude of the liberties in question and what kind of due process should be required unless there is some kind of due process to determine such? IDK, I’m not real familiar with the retro civil laws so I am just throwing stuff out there. That’s one of my mottos, when it comes to courts, throw everything you can think of out there and see what sticks, that’s how the DAs operate.

    • Richard

      Unless Something happens in SCOTUS to stop these unconstitutional regulatory civil laws it will give the green light to law makers to start registers for convicted felons of all crimes they could do it and charge each one fees if you ever had a DWI or DUI you could receive notice 20 yrs later your licences has been revoked and be on the local this is important for SCOTUS to step in front of now.

  15. Anonynmous Nobody

    Actually, what the courts have said isn’t that any law with a “legislative purpose” and a civil label can be applied retroactively. It has said it must be determined whether that civil law imposes punishment.

    What the court has done over the years, though, is rule that nearly nothing constitutes punishment, obviously punishing civil laws have been declared by the courts to be no punishment at all, and so can be enforced.

    The California high court has even overturned previous state high court rulings that held that even mere registration that was at a level much less punishing than the version out there today is punishment, and in fact the earlier court ruled it was so punishing as to constitute unconstitutional cruel or unusual punishment at least in the matter before it, that of enforcing registration against someone convicted of misdemeanor lewd conduct (a disorderly conduct change, not to be confused with lewd conduct with a child under 14). The issue then wasn’t even retroactivity, it was whether the punishment was too severe even as criminal sentencing and punishment, and the earlier state high court ruled it was very severe. But the more recent state high court overturned that, said it not only was not so severe a punishment as to possibly violate the Constitution, but it was no punishment at all. The court neither then nor any other time has said a civil law that punishes can be imposed retroactively, it said the law in question was not punishment.

    This is what I’m talking about when I point out that the courts have the power of definition, of interpretation. They court can and do rule that red is blue, that black is white. That is, that obvious punishment that most everyone in the country thinks of as punishment is no punishment at all, — only on the basis of that ruling that the civil law is not punishment can it be applied retroactively. As far as the court is concerned, it has never ruled that any sex offender law that imposes punishment may be applied retroactively.

    The facts of what is going on are more than sufficient to make a very strong and shocking case, so we need not bend them and open ourselves to accusations of providing the very wrong information we accuse others of doing.

  16. Chris F

    I love the CATO brief.

    However, I believe there are 9 states, including my state of Texas, that also have in their State Constitutions that there can be no retroactive legislation as well as ex post facto laws. That includes civil. Yet, Texas judges ignore that too. I believe in the beginning, they justified ignoring it because the Texas Constitution could be set aside and not keep legislators from protecting the public from a dire and imminent threat. The thought was if it was just figured out that 80% of sex offenders were going to molest someone once free, that legislators may act contrary to the US or state Constitution to save everyone. After that, it just became an easy game for the government to cite precedent, and never revisit the fact that a dire threat to citizens never actually existed in the first place.

    In a way, I think that is what SCOTUS did in Smith V Doe without saying it. They took the easy path of just declaring it civil. Yet, the clues are there. They refer numerous times to the “frightening and high” and “80% recidivism”. Why even bother mentioning those in the majority opinion when it has nothing to do with your stated reason for allowing the retroactive laws? Of course, by taking that easy way they set a horrible precedent that has infected hundreds if not thousands of bad laws that merely have to claim a civil purpose, like stated in the CATO brief. Had they taken the honest approach and stated they were allowing retro laws to save the public from certain doom, it would have made it much easier to reverse future retroactive legislature when the government would fail to prove the imminent doom to its people as soon as “80%” was swatted down as fake news. Smith V Doe wouldn’t have lasted long at all.

    In my opinion the retro-active burdens, while great and disastrous, are not our best way to fight this mess. Sure, it needs to be fought and won too. But, the real fight should be against the legislature taking away the courts role defined by legislature to “punish, rehabilitate, and protect the public” that must be tailored to the individual and only done during the punishment phase of the trial. Protecting the public from a person that committed a crime was never supposed to be done by legislators with a broad brush and no due process. That is the unique job of the court with tools provided by legislature.

    By the courts allowing the legislature to determine how to protect the public after the fact, it means anyone breaking any law at any time could someday in the future (even after serving sentence) have laws targeting just them, and placing any restriction on them the public wishes, and differing between every city. So, instead of the punishments and restrictions being done one time by a judge and tailored to the individual (as well as the duration), they can be done anytime, for any length of time, by any of 20,000 jurisdictions, changed on a whim, and no notification given. If that isn’t violation of the Separation of Powers, Ex-Post Facto, Substantive Due Process, Bill of Attainder, and Cruel and Unusual Punishment all at the same time, I don’t know what is. That is where our fight needs to be.

    After all, the majority SCOTUS opinion in the recent Packingham case brought up “(Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court)”.

    For God’s sake, someone get that issue before the Court!

    • TS

      @Chris F

      Well written and said.

      What you wrote in your last major paragraph about Packingham and SCOTUS could be applied to the Gundy argument as well as I think.

      Good to have your mind here sharing these thoughts.

    • AJ

      @Chris F:
      Greetings, wayward stranger! It’s again and still good to hear your take on things.

      Something struck me about “retroactive”, but I’m not sure it matters. Aren’t these laws technically retrospective? They weren’t passed with an effective date prior to enactment, they “only” look prior to enactment for the subject class. This doesn’t make them any more right in my eyes, but I wonder if that’s a legal nuance the other side can exploit. I’d love to hear thoughts and feedback from others on that, as I may just be getting myself wrapped around the axle on what may be nothing.

      As for someone getting a case before SCOTUS to leverage Packingham’s parenthetical, isn’t that what Bethea v. NC ( may do? Funny how it’s NC again, eh? I suspect Boyd v. WA ( may do so to a lesser extent, too. In fact, I’d love to see SCOTUS take them both and merge them into one case. I think that would be a good indicator for us.

      The cases are coming, that’s for sure. As I said recently, it’s good to see them percolating up to SCOTUS. By late next Term, Millard v. Rankin may be there too! To use a hockey term, we’re starting to have shots on goal. One of them hopefully scores.

      • Chris F (@ AJ)

        Always nice to read your opinions AJ, in fact, I seek them out as well as a few others on here. 🙂

        Really busy after moving and trying to get a job, so I can’t participate yet as much as I would like.

        I agree there is an argument on retrospective to look into.

        From here:

        I see this: “Laws should never be considered as applying to cases which arose previously to their passage, unless the legislature have clearly declared such to be their intention. ”

        Clearly, the legislation does not declare an intention for retro-active law by deferring it to the AG.

        Also, “Whenever a law of this kind impairs the obligation of contracts, it is void.”

        Well, later adding even “civil” regulations to someone convicted of a crime is at the least “impairing” that contract.

  17. mike r

    Yep, Chris adds some real substance to the post that is for sure. I really like the entire post. He is hitting it on the head. Retroactive is just the small issue really and the separation of powers, bill of attainder, substantive due process is all going to come together at some point. An attorney would be nice, but I really do not see any stepping up with all the right moves as of yet.

  18. mike r

    I did not read the entire briefs in the NC case but I did notice that substantive due process was being argued in the lower courts, but it does not seem to be included in the writ. It appears only retroactive crap again. Am I missing it?

  19. Scotus Save Us Now

    He speaks of errors the court has made when wielding to political pressures in the past… I wonder if Smith v Doe is one he speaks of…

    • CR

      There is very clear evidence that the court made egregious errors in Smith v Doe, so let’s hope that is one that he is talking about.

  20. mike r

    Yep, SCOTUS is going to freak out on the solicitor general for bringing that falsehood of 80% to the court and presenting it as fact infecting an entire field of law and billions and billions of dollars with tentacles around the world because of that brief. I feel good about this court and I bet Smith v Doe and McKune v Lile and Conn v Doe are going to be the new Brown v Board…I do not want to jinks up, but I see no way that the court is going to uphold these laws once it get “all” the facts in front of it.

  21. mike r

    Man I like the concurring opinion in Conn v Doe, They are stating that there is more than just substantive due process claims at play there.
    Justice Souter, with whom Justice Ginsburg joins, concurring.
    “I join the Court’s opinion and agree with the observation that today’s holding does not foreclose a claim that Connecticut’s dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut’s disclaimer, ante, at 3, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents’ situation.”
    But the real meat is in the court’s written opinion by a unanimous court. This statement expresses the courts opinion that there is in “fact” at minimum a substantive due process claim, or they would not of even mention all that.
    “Because the question is not properly before the Court, it expresses no opinion as to whether the State’s law violates substantive due process principles. Pp. 4-6.”

    • Chris F(@Mike R)

      Exactly Mike R, Connecticut DPS V Doe has great nuggets of wisdom that have yet to be properly brought up.

      The question is, would they have the guts to take a case that does challenge that Substantive Due Process issue, as well as the Packingham nugget about registration existing beyond state supervision being troubling.

      If your case gets that far, it hits all the nails right on the head.

      • CR

        Kennedy didn’t say that registration existing beyond state supervision was troubling. It would make no sense in light of Smith v Doe, which Kennedy authored. He said “severe restrictions”.

        I think you know this, and simply mistyped, but I thought it was important to mention it since there is a huge difference in meaning.

        The Packingham Parenthetical:

        (Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.)

  22. mike r

    Yeah David, I could not read the entire article as they want you to sign up and all that. The point that jumped out at me was the fact it appears they were talking about people on parole, using Megan’s Law enhancements, and even for parolees finding parts of it unconstitutional. It’s coming people. Chris, keep up the job search, your hella intelligent, you’ll get there. Hope your settling in alright with the move…

  23. mike r

    Ginsburg straight states “I join the courts opinion” So the court and not just concurring opinions are stating substantive due process, that is very telling as it infers that the entire court is behind the substantive due process claim. Especially since “the court” pretty much stated it straight up in the actual opinion. Can anyone believe that “no attorney” has pounced on this? This is what I mean about incompetence or alterior motives or coercion going on. Lawyers are not complete idiots, and some are even pretty intelligent, lol, so there is a reason for this lack of action.
    I also find this libel statement interesting.
    “To the extent that libel might be at least a component of such a claim,”
    What is she stating? Libel is a lie or defamation, I am still trying to get “exactly” what her angle is with that.
    Then this suggesting other claims as well.
    “I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents’ situation.”
    Why have these arguments never been presented to any court in 15 years of this crap?
    It is absolutely insane and the lawyers representing sex offender cases should be held in contempt or have their licenses revoked, or some serious repercussions for not presenting this in every case. There is a blatent ethics violation I would think at minimunm… Yeah something is up some where some how. The Smith lawyers should have immediately turned around and refiled in my “humble” opinion.

    • E

      That does seem amazing. The court put right in the decision what they needed to do to refine… but nobody has. I wonder if people gave up 15 years ago because it wasn’t YET “that bad.” Well it is now. Not speaking up then led to IML and insanity like IL and MS.

    • AnotherAnon

      Maybe there wren’t enough evidence-based studies yet to present to the court. It wasn’t until more recently that the “frightening and high” meme was sufficiently and irrefutably debunked. Just a guess.

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