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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

Related

Court of Appeals of North Carolina Decision

Amicus Curiae by The Cato Institute

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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.

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”.

@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… Read more »

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.

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… Read more »

“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… Read more »

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.

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.

That’s the problem…common sense has no place in this country.

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”.

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… Read more »

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.

AJ and CR, we await your analyses! 🙂

@CR: Thomas is on record as having concerns about Calder v. Bull and being willing to overturn it. Hopefully he can find a few friends on the bench who are of similar mind. If SCOTUS doesn’t do something about the “it’s only a civil, not criminal law” end around legislatures are doing, our Constitution is in trouble. Calder v. Bull worked back before our culture came up with the civil _____ (laws, asset forfeiture, suits) schemes. No longer. ***** In his 1998 concurring opinion in Eastern Enterprises v. Apfel, Thomas indicated his willingness to overturn a 200 year-old precedent, the… Read more »

The majority of the court is ready to trim the administrative state.

The Federalist Society Majority
The organization will soon have a 5–4 stranglehold on the Supreme Court.

https://slate.com/news-and-politics/2018/07/the-federalist-society-will-soon-have-a-5-4-stranglehold-on-the-supreme-court.html

Trump, Gorsuch, & The Administrative State
Topeka Lawyers Chapter

https://fedsoc.org/events/trump-gorsuch-the-administrative-state

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.

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…

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!!!

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… Read more »

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… Read more »

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… Read more »

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… Read more »

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

@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… Read more »

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…

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… Read more »

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… Read more »

I’m definitely grateful that Libertarian outfits like Cato and Reason.com 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… Read more »

@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?

“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?

@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.

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… Read more »

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 Timmoore299@yahoo.com or just comment about this subject more here at this site.

Tim, you may want to look at this Wikipedia page about Foucault: https://en.wikipedia.org/wiki/Sexual_Morality_and_the_Law

” 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… Read more »

@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.… Read more »

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… Read more »

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… Read more »

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 drunks.com this is important for SCOTUS to step in front of now.

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… Read more »

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… Read more »

@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.

@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… Read more »

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: https://legal-dictionary.thefreedictionary.com/retrospective 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… Read more »

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.

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?

https://www.yahoo.com/news/chief-justice-john-roberts-stresses-101536651.html

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…

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.

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… Read more »

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… Read more »

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.

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.)

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…

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… Read more »

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.

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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