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CO: Judge Matsch On SORA: Cut The Crap, It’s Unconstitutional [UPDATED]

UPDATE: Oral Argument – Thursday, November 15, 2018 – Courtroom III

https://www.ca10.uscourts.gov/clerk/oral-argument-recordings

9/2/2017: In Millard v. Rankin, an as-applied challenge, Colorado Senior District Judge Richard Matsch rejected the pretty ribbons the legislature wrapped around the Sex Offender Registry Act. Applying the “intents-effects” test to the law, the court held that it was unconstitutional under the Eighth Amendment. Full Article

Join the discussion

  1. AJ

    “It appears that judges are finally coming to grips with its outrageous and unwarranted price, and finding it too high to pay.”
    Amen.

    • Harry

      It was said by a known to me, “A lie is the rabbit that can run fast around the world and truth is like the turtle and is very, very, very slow, (Did I say very slow? Yes, he is) however the lie will have to meet truth on its second time around.”

  2. TS

    Justice Gorsuch is similar in his mold and beliefs and comes out of the Tenth.

  3. AlexO

    I want to buy this man a beer. And dinner. Even wash his car.

    • cool RC

      and be on your knees as well

      • HOOKSCAR

        That kind of implication has no place here. We do not bow to anyone. Let alone your spew. Even in jest it is offensive. This is the main reason I have taken Miker’s argument for my own. In general we need to fight for ourselves, because no one else will. It is cheap, and if you got time, I say swing for the fences. You already serve life if in California. Let’s ride this wave, and everyone knows California has the best waves. Lol. 🤙

        • mike r

          Totally agree AJ, I find it hard to see SCOTUS letting stand the CuP aspect of the case as that bar and standard is so extremely high. So I am not following this case as I am embroiled in my own case and college (spent countless hours now drafting and preparing for battle, and college calculus and advanced geology, etc. brains about to explode). Where exactly is this case at? What court?

      • Frustrated

        That will get you back on the registry! LoL

  4. ReadyToFight

    Sounds like 4/5 possibly 5/5 on the Punishment scale. I’d say we could come up with multiple examples of just how punitive this crap is.

  5. Jack

    Under sora the definition of non consensual sex is if for instance a 20 year old had sex with his 15 year old girlfriend. That is punishment of reproductively valid behavior, it is totalitarian and it is wrong. Also under the laws of California, if the two ever exchanged nude pictures of each other what would be a violation of 311.11 and to make things worse now under SB 384 the male would be labelled a tier three sex offender further adding to the stigma. Since that is the way these laws are written, American politicians have completely abandoned the idea that sex offenders are entitled to basic human rights, and they have to be stopped.

  6. mike r

    yep. it’s a slam dunk..

    • HOOKSCAR

      @Miker
      Tailored your argument to me and mine. Currently trying to get it reviewed before I submit. Keep us informed as I am debating if this should “mirror” your complaint in federal court or state.
      Plus, trying to get our business started. 👍 Trying to make this wave just a little bigger. Good luck!!!!!!

      • Chris F (@Hookscar)

        Great to hear Hookscar!

        Since it didn’t apply to Mike R, but if it applies to you, make sure you add about the state supplying email addresses to all social networking sites and it getting you banned from sites like Facebook, and then reference Packingham with the quotes about how important those sites are. You’ll need to discuss how the state supplies that list knowing there is really only one outcome, since the state won’t make the determination during sentencing that you would be a threat, they know web sites won’t spend resources on figuring that out when they can just ban everyone on the list.

        This argument can be added inside existing challenges like Substantive Due Process, Equal Protection, or Right to Reputation, or you could start a separate challenge to Freedom of Speech.

        Please let us know and I am sure Mike R, AJ, myself, and many others will be glad to help review it or provide some ideas for creation.

        As noted on the NARSOL conference call, Pro-Se can be dangerous to our cause by getting bad cases that set bad precedents and require 10 times the work of expensive lawyers on new cases and years to undue. Mike R has what we think is a good case that is well argued and backed up by real data, so your off to a better start than most.

        Also remember that Janice is looking for good candidates to launch a case against the core of the registry. You may want to check with her to see if you’d be a good fit or should continue pro-se.

      • mike r @Hookscar

        @Hookscar. Hey I am really glad to hear you are going to go do battle, we are together my friend no matter how far apart we may be or whatever court we file in…. Warriors in action…. I would go state on state constitutional and federal constitutional grounds if I had it to do over. I would just straight go state until state Supreme Court and if I was shot down there I would drop the suit and go federal district court then so it can go thru the appellant court and build a record for SCOTUS and the appellant court. Hell if win in State court it’s a done deal. At least in your state. I am looking to invalidate nationwide or at minimum in the surrounding districts of the 9th. I would definitely wait until I have finished this brief I am drafting right now in response to Defendant’s Judgement on the Pleadings. This is going to knock it so far out of the park the AG is not going to know what the hell hit her. Short and sweet to. I have learned all the unnecessary crap, after the original complaint is filed with everything you can think of, the following docs need to become precise with out irrelevant case law or long strung out arguments unnecessarily. I am at about 30 pages for claims 1-5 which is perfect….

  7. cool RC

    How long do you think California court will say the same thing?

  8. Not Really

    Simple Justice is a great site. Like Janice, et al., he doesn’t shy away because current criminal procedure might be popular.

  9. It doesn't work

    Like it or not, the sex offender registry is unconstitutional. Believe it or not, the sex offender registry is punitive. Want it or not, the sex offender registry will Never achieve its purposes or its goals. Nothing else needs to be said. The end. It’s over.

  10. mike r

    Make sure you tailor it to either state or federal court, whichever you are going to file in..That’s great Hookscar, either way we are both going to have about the same motions in the same courts because I am preparing my state motion as we speak. Really glad to see another warrior willing to put up or shut up!!!!!!!!!!!!!!!!!Where are you at approx?City, state, county?

    • HOOKSCAR

      East San Diego county. I will try and have it reviewed, but it will take some time on specifics. Had a brain tumor so things move at a slower speed for me. I really do wish a class action suit would materialize in California. Too much empirical evidence to be ignored.

      • mike r@Hookscar

        “NO” to class action. Not until someone wins then you can file class action demanding same treatment and have case law to back it up. Class action will not work unless it is properly done. Class action may very well work if, as in the residency restrictions in CA, you singled out the low risk offenders and used those people as a subclass of individuals like they did in CA Jessica’s Law with the parolees in San Diego. I am telling you, that case set a precedent that no one is exploiting at all. The laws cannot pass rational basis review as-applied to low risk offenders according to that precedent. Plain and simple…CA government reports stating the laws are non-effective, hamper LE from monitoring higher risk offenders-presumably making the communities less safe, hamper the individuals abilities to reintegrate into society, are counterproductive. The court in Taylor stated, and it does not get any clearer than the following. Matter of fact I am going to be asking the court take judicial notice of this. @ Hookscar, this is a no brainier for low risk offenders in CA…

        “The trial court took judicial notice of the final report issued in
        October 2010 by the CDCR Task Force, a multidisciplinary group comprised of CDCR
        staff, law enforcement personnel, and other outside participants charged with making
        recommendations to the CDCR on various sex offender issues. The Task Force‟s final
        report concluded that the Jessica‟s Law‟s residency restrictions failed to improve public
        safety, and instead compromised the effective monitoring and supervision of sex offender
        parolees, placing the public at greater risk. A specific finding was made that “[h]omeless
        sex offenders put the public at risk. These offenders are unstable and more difficult to
        supervise for a myriad of reasons.” (Task Force, Rep., supra, p. 17.) The report further
        found that homelessness among sex offender parolees weakens GPS tracking, making it
        more difficult to monitor such parolees and less effective overall. CDCR has conceded in
        its briefs before this court that “[t]he evidence . . . demonstrated that the dramatic
        increase in homelessness has a profound impact on public safety,” and that “there is no
        dispute that the residency restriction[s] [have] significant and serious consequences that
        were not foreseen when it was enacted.”

        Shit I can sum up this in one link.
        http://www.casomb.org/

  11. Eric

    Talking of using the registry for humiliation, in San Diego, for several years we had a radio talk show person who every Friday would read the names of 10 people and their addresses on the air. I guess the Supreme Court hasn’t been told about all the nut cases using the public information for abusive purposes, and in this case to promote his own sick agenda at the expense of people who are probably doing everything they can to be outstanding members of society.

    • AlexO

      How was this person not prosecuted for these actions? The website itself specifically states that using this information for harassment is open to criminal and civil prosecution.

  12. TS

    Judge Matsch would have tossed (dismissed) a facial challenge of the registry being punishment if that had been argued he said during arguments in motion hearings. Any challenge like that will be tossed by any court and any class action suit won’t fly either. It will need to be suits by people continually filing and challenging it like what happened in CO. You can flood the courts, but as seen in CO, real world example(s) of what has happened to you will need to be cited with evidence, e.g. NPS being recently dismissed from work because of their status on the registry.

    @mike r and HOOKSCAR – if you can do that, then your filings will be stronger.

    @mike r – if you need to amend your initial filing to reflect this, you can do that still.

    • Not Really

      It would take a lot of $ and research to build the evidence. A lot of examples backed up with evidence would be necessary. Presenting a weak case easily lost could be a Trojan Horse the state would love to deliver. I hope anyone going on their own has the resources at least equaling the ACLU and all4consolaws.

      • Chris F

        I think once a few individual challenges are won, the class action or facial challenges will be likely to succeed. The reason they wouldn’t now is there are some bad enough that the registry may be easier to justify for them to be on it and not tear it down completely. Once enough get off the registry winning suits, those arguments can be used in a class action/facial challenge and a judge will be more likely to grant it because the path is already laid out and he won’t solely be blamed for taking down the entire registry.

        After all, the final argument should be that the registry isn’t narrowly tailored and affects the least offensive as well as the most offensive offenders. The judge can strike down the entire thing and challenge legislature with creating something new that is narrowly tailored and within control of the judiciary instead of unconstitutionally in control of the legislature.

        Get a few individual victories, then go for the jugular.

        • TS

          @Chris F

          Well said and the path that’s probably best to go forth with. Build then go for the big shot.

          Facially won’t work right away.

        • New Person

          I doubt you can defeat the registry on a facial challenge if the premise is punishment. Let the perfect case come and that will change things. The personal nature of Peckingham is what won all registrants first amendment rights. There was no facial challenge. It was one person who had completed his sentence and endured more than he should have.

          That’s how I am able to under Judge Matsch and the Colorado lawyer, as heard in a phone interview.

          The only facial challenge that I can think that could work is the involuntary servitude approach. But even then, the prime and select candidates would still be best. Out of the four factors, choosing a candidate who’s state only offers “lifetime registration” is the best best. The other three factors, though, favor all registrants: 1. Contract (a part of sentencing), 3. Compensation (there is none), 4. Dominated (under penalty of law, you will be punished for not doing said service).

        • TS

          @new person

          Exactly! That’s what was mentioned in the phone interview!

          Not the invol part, but the rest of what you wrote.

      • HOOKSCAR

        And here is the conundrum. NOBODY is going to help you personally. ACSOL, ACLU or anybody for that matter. Yes ACSOL is bringing things in front of the courts like presence restrictions and such, but at the heart of the matter, the registry itself, needs to be addressed. There is to much empirical evidence to prove the government wrong.
        He is not the only judge. The more motions that are put in the court forces a contradiction in rulings. I play poker, and the judiciary just showed me a tell in their rulings. So I am going all in. I am 52 and I have spent over half my adult life on this POS registry. I am also disabled, so really, I have all the time to harass the government legally. I am going to thoroughly enjoy this. Getting my argument reviewed today by California Western Law.
        I wish everyone the best, but I am no longer waiting idly by and watch undercards. Time for a real fight. I am not in any way knocking Janice or anybody else. No one else is going to get my freedom back but me. Either they cost too much or don’t care. Politics move at a slow pace nowadays, you ever notice that? I got a lot of time.
        Thanks to Miker for motivating me. He is the person that provided the facts and put them in a proper argument. The worst thing that can happen is the courts say”no” and I will be out a weeks worth of money I make baking. Yes I am a guy and I bake cookies and cakes for people. Go figure. 😆 What I am trying to say is only you can address the problem, nobody else will. They can, but because of the SO label, they won’t. So I have to do this myself.

        • AJ

          @HOOKSCAR:
          “The worst thing that can happen is the courts say”no” and I will be out a weeks worth of money I make baking.”
          If you’re lower income, you can request a waiver of the fees. Do a search for “forma pauperis”, “forma pauperis california state court”, for help with it. Federal courts and, I believe, most (if not all) State courts have fee waivers for people of reduced financial means.

          And hey, no need to apologize for being baker! Not one bit. Heck, there’s even a baker who’s having a case before SCOTUS in the upcoming term. 😉

    • Timothy Moore

      TS, that is what I thought, but can a law ever be challenged in court just based on it’s constitutionality (facially)? Does one always need flesh and blood plaintiffs claiming damages? The challenge to the muslim ban for instance, did the state AG’s need individuals to step forward as plaintiffs?

      • Paul

        Reeds lawyer argued for him on facial ex post facto also I think after these cases go thru there will be some legit facial challenges made.

        https://www.youtube.com/watch?v=FI9O0igMs5Y

        I am hoping we can get together somehow and make a packet for people due relief in each state that will make it easy and cheap to file mandamus. I cant understand why these orgs do not have a program set up for this It will get results and will also reduce the prob with pro say motions that make it hard for change because they are not up to par

        • Not Really

          Probably no one in the country knows how to win these cases better than Janice and the people at all4consolaws. They are in the thick of it with an office in Sacramento. She knows the politics and the law and can win in court and the court of public opinion. She fights and wins against impossible odds. They know what they can win and what they can’t AT THE PRESENT TIME.

          No lawyer, in my opinion, likes to file cases that will lose. If it involves the rights of others, it could set a precedent that will set everyone else back. So the goal is to win and that takes a lot more than a collection of people with reason to fight. There have been times when individuals filed and won a very important case that benefited everyone, but they almost always lose and that loss become settled law throughout the jurisdiction. Timing matters and case facts matter. That’s why the ol’ saying, “Bad cases make bad law.”

        • Paul

          DEFENDANT CHALLENGES SEX OFFENDER REGISTRY LAW
          They are using Muniz to stop reg.

          http://wccsradio.com/defendant-challenges-sex-offender-registry-law/

        • Not Really

          That is only helpful and relevant if he wins, and then it is a different jurisdiction that has no authority in California. If it is a new sentence, how can he claim ex post factor violation? I don’t know what the outcome will be, and like most everyone here, I’m not a lawyer, but I don’t get his argument in that short story.

        • Paul

          This case shows the DAS are looking at the Muniz decision and know that it is valid They are worried it will effect their ability to put him on reg.

        • Paul

          Plane and simple we need to get everyone and resources together To help people file Mandamus writs to get off reg. This has nothing to do with appeals. These people are due relief now by cases that have been decided and others have been already given relief. There are thousands in PA that are due relief now that don’t need a new appeal or president set. They are people pre SORNA that had their time lengthened or were made to register. It coast a lot of money for a writ to be done and they all will be similar in nature so someone needs to help get the ball rolling to make a packet that has a generic writ mandamus and attorneys that can help.

        • Paul

          Just spoke with Aaron Marcus Phill Defenders Association

          The hearing tomorrow is at the Harrisburg capital building room 140 open to public no testimony from pub. They will be discussing SORNA and Muniz I hope someone can get there to fill us in.

        • TS

          @not really

          Well said!!

          Many little wins will add up as @Chris F said using real damages for those off paper make the difference.

        • Timothy Moore

          Experience matters. Indirect education like reading about cases matters, but there is nothing that hones a skill like real life trial (pun) and error. It is true in my field dealing with the deceptively simple physical realm. I assume it even more true where most of the work is in the nebulous realm filled with what words mean in relation to other words and a lot of human subjectivity thrown in. I can design and build you a nice garden, I know about how things grow and the interelationships of soil, sun and wind, but don’t put me in a courtroom if you want a win. It’s not my element.

        • David Kennerly, Poster Boy For Whatever Pisses You Off

          “Respectfully, the next time you come to argue a constitutional question, read the Constitution first. It’s in Article 1.” Then, to his co-Justices, “He doesn’t even have to read that far.” – Justice Max Baer to the Commonwealth’s counsel.

          Also, there’s this: https://youtu.be/FI9O0igMs5Y?t=21m26s

          Delicious!

          I just watched this video; thanks for the link!

        • Paul

          His boss Reed is the potato head that sent this clown, he was just nominated for US attorney Unreal

        • David Kennerly, Poster Boy For Whatever Pisses You Off

          Do you mean Freed?

        • Paul

          Yes reed is on our side lol

        • AlexO

          Great video. It was hilarious watching him trying to argue the clouds are made of mashed potatoes. I almost feel bad for the guy being given such a terrible thing to try and argue against.

          I really have to imagine that SCOTUS would have the same reaction now given the overwhelming amount of evidence and absolutely debunking the original recidivism rates.

      • TS

        Muslim ban is not in same thinking and not applicable to compare to what RCs have endured.

        You need damages to show damage. Don’t have that, then in this situation, you don’t get anywhere.

        • Timothy Moore

          I am not comparing the experiences of Muslims to RC’s. I was asking what makes one lawsuit filed to prevent harm from an act of government in one situation okay, and with us to potentially file a lawsuit to protect us as a class from government caused harm and it is not okay. Well come to think of it, Janice did file a lawsuit to stop the IML. Was that a facial challenge? I guess the difference is if you file against a whole regime of laws, like those tied to the registry it becomes problematic, but if you file against a specific law, order or regulation it is legit?
          Still wondering if one needs a plaintiff, or can the Constitution itself be the “plaintiff”? Just trying to understand some of the basics of the process and some terms. Don’t read more into it than that.

        • TS

          @Tim Moore

          I didn’t read the IML challenge, but would suspect, it was a facial challenge. However, if there are instances of individual harm due to IML, which people have been discussing here in this website, e.g. deny entry due to notice sent without Sub Due Process, then you have damages.

          A class suit would be great here but I don’t see it happening facially. A group of religious people being denied is one thing in our system, but a group of punished people is another in our system.

          The Constitution can’t be a plaintiff because it cannot sustain damages.

          The off paper people will need to rise up as individual people in groups together and file challenges to show individual damages with evidence to back it up as did CO plaintiffs. Enough of that, a pattern is established then maybe a greater swing could happen.

        • Tim Moore

          Thank you for helping me understand the process.

        • AJ

          @Timothy Moore:
          Without even getting into details about any lawsuits, I can give one big reason why a Muslim claim would be different than any RC claim: religion is a protected class.

  13. Paul

    He already won and 7 plus people got off reg before PASC issued a stay of record. There are 2000 plus people in PA due relief right now because of this decision The only people that got off the reg so far filed a writ of mandamus I’m saying that these 2000 plus people due relief could use help low cost attorney a generic mandamus set up to lower cost the writs will all almost be the same People cant afford to pay 5k each to get relief due right now not later. Everyone wants to talk about big US SC appeals instead of getting help for people that already have the right to get off the reg from cases already decided. In addition why is it that there is no pool of money from SO’s to put the big US appeals thru the court Team up and kick but why do these Org not set up a fund to do a big case that we can all contribute to with a dream team of lawyers?
    I SAY WE GET MID EVIL, BRAVE HEART, AND WILLIAM WALLACE ON THESE MF’S TEAM UP AND PUT OUR MONEY AND TIME TO WORK FOR ALL OF US

  14. Marty

    I’m still in shock (pleasantly) that at least one judge understands the difference between administrative and punitive, or at least he’s willing to go on record with such a declaration. I still find it difficult to believe that I will bear witness to the end of the Registry in my lifetime, but hope burns eternally bright in my heart as it did at the base of Pandora’s Box.

  15. David

    ⭐⭐🌟 For the current status of Millard, you can listen to last week’s oral arguments at this website:

    https://www.ca10.uscourts.gov/clerk/oral-argument-recordings

    You will need to scroll down to
    “Thursday, Nov. 15th, Courtroom 3”.

    • steve

      Disappointing Millards attorney stumbled big when the female judge asked about the registry and if the registry was a deterrent to further crimes. Really a missed oppotunity to challenge “frightening and high.”

      • TS

        @Steve, et al

        Don’t forget the briefs submitted for and in support of Millard. There’s more to this appeal than oral arguments.

        • David

          @TS: As the saying/wish goes, “From your lips to God’s ears!”
          Nonetheless, the oral arguments by the attorney for Millard certainly lacked the clarity, force and verbal “bullet points” of the State Attorney’s arguments. Rather disappointing. 😕 Hopefully, the written arguments and amicus briefs will be sufficient to win the case. 🙏
          (…. but then will it end up being another case going to SCOTUS that results in a denied petition for certiorari [just as they denied cert for the Pennsylvania high court’s finding of “unconstitutional”]? 😒

        • CR

          @David, — “(…. but then will it end up being another case going to SCOTUS that results in a denied petition for certiorari [just as they denied cert for the Pennsylvania high court’s finding of “unconstitutional”]?”

          That, in my opinion, would be a good outcome that strengthens the trend of reining in legislative excess. It’ll take a mounting trend of denial of certs in multiple circuits, leaving in place judgments that are in our favor, to set the stage for the case(s) they eventually decide to grant cert to.

        • TS

          @CR

          Exactly!!

          @David

          As we discussed here last week the oral arguments I posted the link for the day of, under another Millard thread, neither atty was stellar in their presentation and left a lot to be desired at the end of thirty minutes. People at the Florida website were up in arms too.

          Bottom line, there are briefs to consider and were read prior to the oral presentations.

        • AJ

          @David:
          “(…. but then will it end up being another case going to SCOTUS that results in a denied petition for certiorari [just as they denied cert for the Pennsylvania high court’s finding of “unconstitutional”]?”
          —–
          The specifics of the Muniz case out of PA probably didn’t factor in to SCOTUS denying cert. SCOTUS has neither authority nor jurisdiction over a State-constitutional issue decided in State courts. Since PASC had already also declared it unconstitutional at the State level, there’s nothing SCOTUS could have decided that would change things. Even if SCOTUS said it was okay according to the Federal Constitution, the State constitutional ruling would hold. In short, SCOTUS denied cert. because anything else would have been “p!ssing in the wind.”

        • David

          @AJ: I disagree with you regarding the SCOTUS’s decision not to give cert to Muniz. Yes, they would not rule on PA constitutionality, but they certainly could have addressed the question of U.S. constitutionality.

        • AJ

          @David:
          “I disagree with you regarding the SCOTUS’s decision not to give cert to Muniz.”
          —–
          You can disagree with me all you wish, but you’re also disagreeing with SCOTUS.

          From Herb v. Pitcairn (https://supreme.justia.com/cases/federal/us/324/117/):
          *****
          “Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.”*
          *****
          The key phrase here is, “if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” This is what happened in Muniz. No matter what SCOTUS decided, the, “same judgment,” not only would be, but already had been, rendered by PASC.

          *In 1793, Chief Justice Jay informed President Washington that Federal Courts (including SCOTUS) are constitutionally prohibited from issuing advisory opinions. See: http://courses.missouristate.edu/ftmiller/letteradvisoryopin.htm, or for a deeper dive: https://ttu-ir.tdl.org/ttu-ir/bitstream/handle/10601/465/casto4.pdf?sequence=1

          SCOTUS further addressed this in MI v. Long (https://supreme.justia.com/cases/federal/us/463/1032/):
          *****
          “Primary Holding

          State court decisions that appear to be determined on largely federal grounds and lack a separate, adequate state ground for resolution may be reviewed by the Supreme Court because it appears that the state court based its reasoning on federal law. If the state court states in its decision that it resolved the case on separate state grounds, however, the decision is not subject to review by the Supreme Court.”
          *****
          Here the key phrase is that last sentence, “[i]f the state court states in its decision that it resolved the case on separate state grounds, however, the decision is not subject to review by the Supreme Court.”

          PASC, “resolved the case on separate state grounds,” by finding PA’s SORNA violated the PA constitution. Therefore, Muniz was “not subject to review by the Supreme Court.”

      • Chris f

        The deterrent thing is just a strong indicator that it meets one of the mendoza factors to declare it punitive if it does deter. Obviously anything that makes life harder can be called a deterent so there isnt much to say.

      • TS

        How do you effectively assess the effectiveness of a (punitive) SORA? The recidivism rate only? That makes no sense. Is it truly a one to one relationship? I think that’s what the judge wanted to know (rhetorically perhaps) but how does one measure it? For the three appellees, as Ty Gee said, it’s effective for them (based upon their experiences noted in the case to date). Politicians think so too (for votes).

        What about the other factors in life that guide people who don’t have a registry but have committed crimes and don’t repeat, e.g. moral compass; family, social & economic impacts; better choices; etc? It’s an individual measure. IMO, you could statistically measure it with a sample pool, but would it be representative of the population?

        As we’ve said, a registry (or residence restrictions, Halloween prohibitions, etc) isn’t going to stop a determined person.

  16. pgm111

    Sadly, the attorney presenting to the appellate court is not well-spoken and seemingly not well-prepared. He could not answer a basic question about the lack of effectiveness of SORA.

    • PK

      I’m not clear about how much weight is given to oral arguments vs. written briefs.

      • TS

        @PK, et al

        I have been doing some digging on oral arguments WRT to this appeal, e.g. if they matter, how much they matter, and how justices weigh them. Bottom line, oral arguments are individually weighed, e.g. each justice is different when it comes to the oral argument regardless of the presentation. Therefore, no one really knows what the justices think of the oral arguments.

  17. Chris f

    Very disapointing oral.

    At least the state just said than usual Smith v doe is precident crap so nothing important from either side. This case will be decided by briefs if they get read.

    A big opportunity to challenge substantive due process. As usual, the judges wanted to have an excuse to ignore it and say that only cruel and unusual punishment needs to be looked at. The lawyer for our side just asked substantive due process not be ignored. Why can’t anyone say on the record “substantive due process is violated because multiple fundamental rights are greatly affected by inclusion on a registry for an arbitrary length of time not taylored to the individual by a judge during fair court procedures where he has a right to be heard and instead mandated by legislature with a broad brush and continueing beyond the time period of government supervision the court deemed needes to punish, rehabilitate, and protect the public”

    I know that sentence might use up half of his time, but it is needed more than the stuff he said.

    • TS

      “Presenting lawyers usually cannot get away with simply making speeches or reading their briefs when presenting oral argument to an appeal court.[1] ”

      “Oral argument is not always considered an essential part of due process, as the briefs also give the parties an opportunity to be heard by the court.”

      https://en.m.wikipedia.org/wiki/Oral_argument_in_the_United_States

      Briefs are read, arguments aren’t necessary but requested and can be denied.

      • Chris f

        Good to know.

        It’s still a shame that after reading the briefs and the judge feeling the need to orally shoot down substantive due process that no real argument was put forth to stir up the judges to change their mind. The judges have set this up to say cruel and unusual is the proper argument and if that fails we wont consider due process.

        • AJ

          @Chris f:
          Yes, the lawyer(s) should have done better and more on SDP, but in some ways it doesn’t matter too much. This case will be appealed to SCOTUS, regardless who wins at this level (my same old mantra applies). The lawyers have raised and preserved SDP in the record, which is all that’s really needed. The CoA (and SCOTUS if it gets there) will almost assuredly look at it, even with the 8th claim being the thrust.

          I must admit to being somewhat pessimistic they will find it to be C&U punishment, but I do think they will find the law, or at least elements of it, punitive in effect, which is all we really need. And since the same analysis applies to C&U, EPF and Double Jeopardy, a punitive decision can be useful in many ways.

  18. Dustin

    It seemed to me that the judges who asked questions of both attorneys were only asking to support an already predetermined opinion. Maybe I’m wrong…

    That said, neither lawyer was very persuasive. The case will probably hinge on the briefs, assuming both sides packed them with the usual data. I doubt any minds were changed, and imagine it’ll be another registry case to take to the USSC. They can’t keep denying cert forever – too many conflicting opinions among the circuits.

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