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SCOTUS: Court poised to rule for challenger in dispute over constitutionality of sex-offender law

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today the justices seemed overwhelmingly likely to agree with him, even if it was not entirely clear how they will remedy the constitutional violation. Full Analysis

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  1. AO

    “Lunn resisted, telling Ginsburg that bringing a jury trial into the supervised-release system would create problems, but that response drew criticism from some justices.”

    My guess is this “problem” would pure resources of both money and finding juror’s. This exact issue is why pretty much everyone on prosecution is usually looking to cut a deal instead of going to trial (I think the figure is something like 93% of cases never go to trail). However, this problem is irrelevant when it comes to justice as it’s “blind” to the burdens of the people may have imposing justice.

    Which really brings us back to the registry and the fact that pretty much all registries skirt any real evaluations of each person’s case, and instead take a shortcut to arbitrarily lock people in purely based on the penal code they were prosecuted on (which in itself can be applied to a huge degree of actions all falling under the same penal code). I’m curious if this should fall in our favor (and judging by the article seems like it will), if this can then be used to attack the registry itself based on the fact that not even the judge, but a politician, having a say of how long individuals may have to spend on the registry?

    • BM


      Correct me if I’m wrong but didn’t SCOTUS already determine that current dangerousness is immaterial to to the registry?

      • AO

        Immaterial to the existence of the registry as a whole. But if they’re going classify people into tiers which represent likelihood of recidivism, I’d think one would need to do some evaluation. I can’t recall which case(s) it is, but I believe there is at least one where a state supreme court ruled individual assessment would be required. I’m sure AJ or someone else with deeper understanding can comment about this.

    • Chris f (@AO)

      Well stated AO!

      I have been preaching on here for years that the legislators placing people on a registry based on convictions to protect the public has to be under the control of the judiciary and juries. It is already in US code that judges handle determination of guilt, punishment, rehabilitation, AND protecting the public from those convicted.

      Connecticut dps v doe 2003 determined a trial over dangerousness wasnt needed because the scheme did not depend on dangerousness. All were put on the list. But, this was before being on the list automatically subjected you to restrictions like IML, federal housing, jobs, shelters, and residency restrictions. As soon as that happened, there is an inferred dangerousness otherwise we would be protected from all that under equal protection guarantees. Either we are equal or we aren’t. If the “scheme” makes us different than anyone else, then there has to be due process to justify inclusion.

      Hopefully this Scotus ruling will give us more juicy nuggets to use against the registry like Packingham did with the “troubling” fact that registration extends beyong the judicially determined period of government supervision.

      • mike r

        Absolutely Chris. I think all these issues are coming up real fast before SCOTUS that we have been talking about over the years and you are exactly right. I have always been behind this argument and we will see what the 9th circuit thanks as soon as my case is done in the lower court and I can appeal the denial of this by the Magistrate. This is also going to be a powerful as hell precedent because how can a parolee, once again, retain more rights than a free citizen.

    • AJ

      @AO, et al.:
      The way legislators get to determine it all is because in Smith SCOTUS declared it a regulatory scheme. As a regulation, legislative bodies have great latitude in how things apply. I’m not saying I agree, I’m saying that’s how the game is played inside the courtrooms. (I sure wish more would join Justice Thomas is his desire to revisit Calder v. Bull!)

      I believe it was a KY SC case (can’t remember the actual case, sorry) where they Justices talked about individual assessment–either that, or they talked about lifetime registration. I may be confusing things, and I’m not sure I have the case(s) in my repository. The 6th in Snyder, while not saying individual assessment is required, remarked on the lack of such as part of its decision.

    • Tim in WI

      You are exactly correct on all counts, essentially the FED AG via creative law making suggestion convinces U.S. congress to pass the Wetterling Act which contain an ex post facto law which the Smith Court, headed by Rehnquist recognized but approved of as ” regulatory and not punishment. ” The minority ( jews) new better as they’d remembered history from prewar Germany whereby The Nazis instituted a ” regulatory registration regime” of there own.

      Anyway it was the FEDERAL ATTORNEY GENERAL JANET RENO who passed special instruction to state AG (J.Doyle in WI) to pass along to state Congresses to pass, or face Byrne Grant funding ( the police state) withholds up to 10%. ( ,OMNIBUS94).

      MR. GUNDYS case fails for the exact reason mentioned in Connecticut DPS that being plea waivers freely and intelligently entered in the record there by removing substantive protections. Thus in the remarks on DPS state clearly “we’ve not considered Scandinavians in this case.” Suggesting that a case without plea waiver may prevail should it be raised in the substantive due process claim. None of those ” similarly situated ” in Connecticut DPS could make that claim. Why?They’d all waived.

  2. David

    It would certainly be refreshing to have SCOTUS rule in favor of the defendant (offender). I hope the briefs and any supporting amicus briefs help enlighten the Justices about the unreasonable (and unconstitutional) requirements, regulations & restrictions continuously being heaped upon those convicted of sexual offenses.

  3. B

    Wow, what a read.

    It’s an interesting tact to the justices counter arguments. The politics in play, the history.

  4. Dustin

    The law in question as I understood it is when there is a preponderance of evidence of a particular parole/probation violation, all parole/probation is revoked and an additional 5 years is added to the original sentence. Even the revocation judge should have known that wouldn’t fly long.

  5. mike r

    Like I have been stating for years as well. They cannot make you do more parole or sentence you to more time past your maximum allowed by the statute that you were convicted under. Cannot happen, unconstitutional, absolutely blatant disregard for due process!!!!!!!!!!!!! They had to kick me off parole 6 months early because of this exact reason. Anyone on parole past their max sentence is being violated. Why Janice or other attorneys are not fighting this is beyond me. Then to get sentenced for a violation of parole to more time than your max sentence for not committing a new crime absolutely triggers a jury.

    Even the mandatory max is unconstitutional as it is the judge just as Chris has stated that has to sentence you, those max and min are just guidelines so there is no such thing as max and minimum sentences. Whatever that judge sentences you to, that is your sentence, no if and or ambiguities whatsoever. I always said, “what the hell is wrong with people on parole or serving sentences past their max. Each and everyone of you or them MUST file their 602 appeal demanding release at their max sentence date and sue the hell out of CDCR if they do not end parole after your max r release you from prison at your max. I would have even maybe fell for it except that I went back to re-sentencing and demanded during that sentencing to have the judge tell CDCR what my max release date was on the record because my original PD was allowing them to add on six months to my sentence and then CDCR was trying to add on another extra six months of parole at the standard 3 years back then. No I got out 6 months earlier than my estimated early release date and off parole at my max date. Does not take a lawyer to know this or to file for monetary damages that are already in the statutes for those spending time in custody against the law. Not only that it is a major felony for false imprisonment…….
    Until people stand up and fight they are getting what they deserve, burnt because everyone has to fight for freedom, it is not nor has it ever been free. I be go to hell if I would trust CDCR to calculate my time and add more time on me than my max sentence by a judge. Crazy talk…. I would have even did 85% if I just lay down and took what CDCR was giving me. I should have and turned around and sued the shit out of them, but I wanted out to be with my son and other family members.

  6. mike r

    This is the case with registration violations. They cannot just state you violated registration requirements and throw you in prison, they MUST give each and everyone a jury trial on each and every count which has to be proven beyond a reasonable doubt that you violated the registration statutes. Frigging people stand up man…………….. Or take what you get for not standing up for freedom when your country is under attack by these domestic terrorist, CDCR, Parole, DAs, AGs, these are the terrorist. Even most of the cops are just doing their jobs, it is the ones that I pointed out that are the culprits and you people just lie down and complain, but yet take it in the A^&^$&^$& with out any lube……. Get pissed at me, yell and scream. But this is the truth… Handle it or do something about it………

  7. mike r

    Sorry man, I am just so pissed off watching people get screwed and them doing nothing about it. Toss in the court treating me as some lame and not taking me serious because I am pro se and none of these orgs will help me. Top that off with the fact that no RCs file file file and I am inflamed…. If you had thousands of people standing up for their rights the court would have to take notice and do something about it. It is in the statutes that if a law creates so much chaos and litigation that it swamps the court’s ability to function the law must be clarified and justified to where the court can just say nope denied. When you have one guy filing the court thinks it can just dismiss him because he is pro se and no one else is complaining so who cares. SCOTUS and the 9th are going to care I bet, but until then who knows, The judge is going to have a hard time not taking my last filing seriously I can tell you that. Unless hundreds of people file file file then a pro se must be exact and precise. Well that last filing is both.

  8. mike r

    Look this is just the first case that came up on the subject,

    The Massachusetts Supreme Judicial Court ruled Wednesday that it is unconstitutional for sex offenders who have completed their sentences to be subject to lifetime supervision by the state’s Parole Board, declaring that only judges have the authority to order additional jail time for criminal violations.

    The 6-1 decision ordered an end to the state Parole Board’s oversight of an estimated 300 sex offenders — oversight that allowed the board to impose jail sentences for parole violations — in a ruling that many lawyers declared a victory for due process. But victims’ rights advocates and a state prosecutor said they fear the decision removes a critical safeguard.

    6-1 my friends… Parole is a part of your sentence. It is a, I hate this saying but it is apropos here, a no brainer…….. CDCR needs to be sue out of existence over this by tens of thousands of people. Where the hell are the pro bonos on this. It is a slam dunk monetary suit….. Janice??????????????

    • AJ

      “The 6-1 decision ordered an end to the state Parole Board’s oversight of an estimated 300 sex offenders — oversight that allowed the board to impose jail sentences for parole violations — in a ruling that many lawyers declared a victory for due process. But victims’ rights advocates and a state prosecutor said they fear the decision removes a critical safeguard.”
      Last time I read the Constitution and Amendments, I distinctly recall seeing “Due Process” in there. I do *not* recall seeing anything about safeguarding victims’ rights. Isn’t that what the justice system is all about, punishing someone for violating the victims’ rights? It’s one and done, folks, not in perpetuity.

  9. Cassandra

    On a separate note, did anyone read Timbs v Indiana.
    The 8th amendment now applies to states. If you read the opinions of Thomas and Gorsuch they speak directly to cruel and unusual punishment.
    I cannot think of a group more amerced than RSO.

  10. mike r

    Yeah see, the justices are saying what I have been trying to tell people on here for years,

    Now, if that’s the case, I look at the
    statute here. What does the statute say? I
    think it says 10 years. Right? So, if, in
    fact, it’s 10 years, then because of tradition,
    cases, E, he served five, he has supervised
    release of five, and so you can send him back
    to jail because of fact X as long as you don’t
    go beyond 10.
    But, if you go beyond 10, just as you
    needed to find the fact by a jury in basic
    Apprendi, so you should have to find the fact
    by the jury here, because there’s no real

    Now do people believe me? How about any civil rights orgs that want to do pro bono, for monetary damages in a sure slam dunk case. They would be, well to be polite, something wrong with any attorney that wants money not to do. Anyone that is doing time or parole probation beyond the statutory maximum sentence has a monetary claim and CDCR is committing a felony false imprisonment…

  11. mike r

    This oral argument is classic. See these justices take their job and the constitutional rights seriously, we just have to get the right case in front of them like this. They are going slam the states so hard it will be comical watching them, squirm like this guy is doing.

  12. mike r

    Repeatably stating it,

    JUSTICE KAGAN: Mr. Feigin, you keep
    talking about the parole cases, but the parole
    cases are cases that are very different from
    Justice Breyer’s hypothetical because, by
    definition in parole, you cannot serve longer
    than your original sentence.

    Anyone on parole past their max sentence need to copy this oral argument and sue CDCR immediately for discharge from parole and cash payment for every day you were kept past your max sentence. Plain and simple. Wii anyone??? NO!!!! Why??? frigging beyond me, scared of CDCR? not even a smigging of competency? do not believe every SCOTUS justice? cannot read or write? I have to say it-how about just plain stupid? Does not get any plainer than the oral argument.

  13. mike r

    According to the oral, registration is a criminal statute attached to your original sentence because the registration statute imposes criminal penalties by definition because a violation triggers a jury trial. This is exactly the same situation that the court is addressing. This is HUGE!!!!!!!!!!!
    Because registration is triggered by a conviction it is attached to that conviction, and because it creates new penalties for an element that has to be proven by a jury beyond a reasonable doubt makes the statute a criminal penalty statute attached to your original sentence. The key word is PENALTY!!!! Punishment, beyond the original sentence.
    Put in other words, what at is to stop the legislature from stating in the registration statute that a violation is the death penalty?? Let that sink in.
    So they would be allowing a death sentence for an infraction of a statute that is attached to you because of a previous conviction of a crime that you have already served your maximum sentence for. This would be permissible if a jury found you guilty of the offense for which you violated the statute, but the would raise all kinds of 8th and 6th amendment issues, but that is not what I am stating and pointing out. The justices are calling this type of attachment beyond your sentence a penalty and that a jury has to find beyond a reasonable doubt you committed the element of the offense. Penalty=punishment…….
    This seems hard to wrap your brain around, but it is in fact very basic logic. It is the something being addressed, adding parole to your sentence beyond the max.
    Like I stated, a HUGE PRECEDENT is going to be set here. And it is not a sex offender so the justices are really free to do as they please in this arena without any backlash from the mobs.

  14. Matthew

    I’m so confused. I had a felony 311.11(a) was sentenced to max 1 year at the time but had 3 years probation after.

    • AO @ Matthew

      Probation/Parole is somewhat separate from your jail time. In CA, if you’re given probation and county time, you actually do half the time. So if you’re given a year, you’ll do 6 months as long as you stay straight. Then you’re given probation for a minimum of 3 years. Probation typically comes with restrictions that in themselves are not criminal like maybe you having a curfew or not being able to leave the county without permission. If you violate one of these, you’ll likely be sent back to jail to finish serving your full jail times sentence, so in this case another 6 months for a total of 1 year. But, if your violation is something illegal like your actually repeating your crime, then you both violate your terms meaning you’re going to serve that additional 6 months AND you’re now going to be sentenced for more time based on your new crime. This last part is what this case is about. Parole basically tried to automatically not only make him serve the rest of is original sentence, but they automatically applied the penalty to his new crime without due process (he was found to have CP again). SCOTUS is saying this new crime can’t just automatically make you guilty and apply all penalties without due process.

      Think of it this way: you’re on parole for burglary. You go on a murder spree. Parole now automatically gives you the death penalty/life in prison which is waaaaaay beyond your original sentence for burglary. SCOTUS, in the arguments, is saying “No, you can’t do that. You have to treat this new crime as an actual new crime and go through the whole process of a trial and such”.

      • mike r

        Yeah probation is very different. “Probation occurs prior to and often instead of jail or prison time, while parole is an early release from prison.”

        Everything I stated only applies to parole.
        And yes I understand what the case is about.

        “Think of it this way: you’re on parole for burglary. You go on a murder spree. Parole now automatically gives you the death penalty/life in prison which is waaaaaay beyond your original sentence for burglary. SCOTUS, in the arguments, is saying “No, you can’t do that. You have to treat this new crime as an actual new crime and go through the whole process of a trial and such”.”

        IDK maybe I am just reaching for something we can use in the case, but it seems there is more going on there than just that. I will have to digest it more as there is more to it. It is not as simple as you state or the case would not have even got to SCOTUS. It is undeniable and un-debatable that you must have a jury trial for a separate offense. They even state this many times through the argument that if it was that easy the case would not be in front of them.

    • mike r

      Sorry to say, it looks like tier III,
      (R) The person was convicted of a felony violation of Section 311.1 or 311.11 or of violating subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, or 311.10.

      It seems to include all 311.11 just as it includes all 288.2
      Like I stated, very very few are ever getting off the registry under this bill.

    • RegistrantNotAnOffender

      Probation can be longer than your actual sentence. I can do two months jail and get a year probation.

      Parole is different I think.

  15. mike r

    Yep from what I am understanding the only way this can be used for us, and it is huge, is that registration is punishment because it is mandatory attached to a conviction “and” it has criminal penalties for violations that require a jury finding of fact. It is in fact a constitutional statute, in this sense, because it requires a jury trial to prove violations, but according to the justices anything that is attached to the original conviction, whether it be extra parole with violation penalties or registration with violation penalties, is punishment beyond the maximum allowed by statute. IDK know I am still trying to digest this. I understand that they are calling it punishment if you do not have a jury trial, but are they stating a jury trial remedies the constitutional issues. It appears the justices and the petitioners were struggling to understand or make clear this exact question…….. This seems to be the real argument happening, what is the remedy? Do they strike the statute completely or does the parole agency get to initiate a criminal proceeding with a jury trial? I want to know what the remedy is…. That is the meat. If a jury trial is the remedy that triggers the conversion from a penalty into a completely separate proceeding is that no longer considered a penalty arising from the original conviction? therefore permissible? Wow, interesting. I understand it now completely. And the justices did not really give away what the answer will be………….

  16. matthewThnak

    Thank you everyone for your responses.

  17. AJ

    Only Justice Samuel Alito seemed to be squarely on the government’s side, warning that a ruling for Haymond could potentially “bring down the entire supervised release system.” As a result, much of the second half of the oral argument focused less on whether the law was unconstitutional and more on what should happen next.
    What?!?!? Alito rubber-stamp siding with the Government and against the citizen? Nooo…. (*shocked face*)

    • TS

      Lemme see @AJ, resetting the entire system and changing how many different regulations (3,000 or 30,000) as discussed in Gundy (I think that is right without referring specifically)? Hmmm….SCOTUS is worried about the level of effort required to get things right?!

      • AJ

        All Alito ever wants is more power for law enforcement and prosecutors. Perhaps he should be nicknamed, “Sieg Heil-ito.”

  18. Timothy

    All precisely because US Congress embraced and utilized “Was in prison for a sex crime.”
    Congress itself embraced the language when they knew better. The constitution itself forbids the use of that language. I plan to hold politicians accountable for their decision to embrace manifest evil.

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