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
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.
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.
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. 🙂
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.
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 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.
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.
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.
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.
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…
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 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 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….
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…
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.
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.
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!
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…
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.
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.”
I would be happier if this came from SCOTUS!!
https://www.law.com/njlawjournal/2018/05/30/nj-supreme-court-bars-retroactive-application-of-megans-law-amendments/
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 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.