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AK: Supreme Court declares law requiring all sex offenders to register unconstitutional

The Alaska Supreme Court has ruled that the state’s sex offender registry law violates offenders’ right to due process.

In an opinion handed down Friday, the court — voting 3-2 — found the law requiring all offenders to register unconstitutional unless offenders are first given the opportunity to demonstrate they aren’t a danger to the public. Full Article

Decision

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“…given the opportunity to demonstrate they aren’t a danger to the public”

Bizarre. Nothing short of bizarre.

“ASORA is overbroad because it imposes its requirements on all persons convicted of designated offenses without affording them a hearing at which they might show that they are not dangerous,” and “We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness.” So if the state of Alaska creates such a procedure in order to satisfy due process, will it just be a farce? How will anyone establish they are not dangerous? Isn’t that like proving a negative? It seems to me that due process would be… Read more »

I think 5 to 10 years offense free is proof enough. Some states say 25 years. But really!!!!!?? 25 years is a long time and if you eventually have children, they would be grown before youd be able to provide them with a normal childhood.

@CR that is spot on – This is positive news however, the ‘procedure’ would need to be fair and the bill should be picked up by the state or feds (polygraph, therapist analysts and recommendation, etc.). I feel like we are just going to be in a holding pattern in AK as we are in Michigan as they recently had the same outcome. That said; how would one prove they are not going to commit a crime in the future? That is impossible.. the only component the courts could use as a barometer would be the offenders past criminal history… Read more »

If you try to prove you are no risk at the time of conviction, it’s much harder to do than after the time that science says it takes to be as safe as some other population that doesn’t register.

If you go by the offense and criminal history , many people will prob be considered a risk , but if you go by the time you been offense free and abiding by the pro or parole , been in counseling many years , has stable life with wife , job and not reaffended after so many years , it should be part the assessment in proving one is not a risk , polygraphs can fail at the slight of anxiety or health issues , they should not go by no polygraph , recommendation , my hub been on this… Read more »

It should be based on your conduct post imprisonment. I’ve been out 12 years, and now married with children of my own, no probation or parole, obtained a bachelor’s degree , and have always worked a steady job, staying out of trouble. That should be enough proof I’m no threat!

Not being totally familiar with the pre-release screening done by the AK DOC I presume each offender is put before “the board” and it is determined, in the absence of the inmate, whether they should be released or recommended for civil commitment. If the inmate passes “the board” review and completes the classes as mandated by the terms of 85% supervised release the State has already proven in their own records that the offender is not a danger.
Why are these State and public records not being used to show that the State already cleared these individuals?

@Constitutionalist: You’re exactly right. As part of the whole sentencing process, including release, the State must do some sort of risk assessment. I’d love to hear the State’s argument that I’m of such low risk as to be able to roam freely in society…but I’m such a risk that society must be notified I’m roaming freely! You can’t have it both ways folks. Keep in mind those assessments would be without any “cred” built up being offense-free in society, without getting a job, without further education, etc. IOW, it would be the worst-case, or roughest, assessment of an individual. Time… Read more »

@Constitutionalist: “If the inmate passes “the board” review and completes the classes as mandated by the terms of 85% supervised release the State has already proven in their own records that the offender is not a danger.” @AJ: “I’d love to hear the State’s argument that I’m of such low risk as to be able to roam freely in society…but I’m such a risk that society must be notified I’m roaming freely! You can’t have it both ways folks” Are you both making the incredible argument that “danger” and “risk” are wholly binary “on/off” “yes/no” “one or the other” determinations,… Read more »

@CR: “Are you both making the incredible argument that “danger” and “risk” are wholly binary “on/off” “yes/no” “one or the other” determinations, with no consideration of degree, no gray in between?” —– Absolutely not. Both exist on a continuum, but they are related. Consider: Risk: The potential danger that threatens to harm or destroy an object, event, or person. (https://legal-dictionary.thefreedictionary.com/risk) Danger: assailability, crisis, defenselessness, exposure to harm, hazard, helplessness, jeopardy, lack of protection, lack of safety, liability to injury, menace, nonimmunity, penetrability, periculum, peril, perilousness, precariousness, pregnability, risk, threat, unguardedness, vincibility, vincibleness, vulnerability. (https://legal-dictionary.thefreedictionary.com/danger) Notice how each definition uses the… Read more »

Huh, SCOTUS03, expressed the opinion the SOR regime ” was not dangerousness based” but based on ” fact of conviction” in determining underlying INTENT outside the acts preamble applied expost. It’s civil nature was regulatory based on those observations ( majority). This court’s opinion is directly INVERSE to precedent and perhaps another substantive change in heart as expressed by Mr. Kennedy in NC V Packingham.

Wow! This is huge!

I’ve seen rulings like this before in years past only to lose momentum and fizzle out into nothing.

Don’t get too excited.

Can anyone cite the most recent CA SC case where the SC has upheld or struck down CA SORA ???

@ Chris, AJ or ?? my old Yahoo email is no longer any good. I got a new phone with new number and I am locked out of that email. Hit me at mikeys20192019@yahoo.com so we can stay in touch.

So this case I a still reading but it is encouraging so far.

mike r,

Try this:

https://capcentral.org/secure/search_advanced

I also have all their weekly cases summaries saved dating back to 2012 and they are searchable.

My god what a brilliant opinion and I am only half way through. This is the template I needed for a CA state action, with the modification of case law and the CA constitution. I have tried before to find case law that CA SC has had and I cannot really nail down the concluding case that it is constitutional or unconstitutional in CA.

I must have misread the headline…

The court didn’t, however, overturn the law. Instead, it sided with the state’s argument that public safety interests justify the infringement of offenders’ civil rights.The court didn’t, however, overturn the law. Instead, it sided with the state’s argument that public safety interests justify the infringement of offenders’ civil rights.

Love the entire opinion until the end (but it is still encouraging and definitely a giant leap ahead for our side), and it is just in time for me to use some of it in my appeal, but definitely in a CA case if I cannot find case law in contradiction from the CA SC. The part I do not like is, “If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing… Read more »

@miker

Excellent summation!

The state is wrong as you say. They should do an assessment at the beginning not afterwards which I could see them, if smart enough, doing going forth. For those listed today, going to need to prove it at state expense preferred.

This would be the time for all the “experts” to offer solutions, except the one everyone dislikes here.

@mike r: “If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.” —– That same sentence leaped out at me, too. I posit that “[i]f Doe can show at a hearing that he does not pose a risk requiring registration, then there is no” *rational basis* to “requir[e] him to register[.]” If I can as-applied prove, through whatever State-sanctioned processes (which there’s no way in… Read more »

@AJ, absolutely right. It is very easy to show that we are no longer dangerous per their own tools or authoritative/expert opinions.
What is going to happen is these fools are going to try to manipulate the court by putting parameters that a court has to follow, i.e. use their own psychs on their payroll, require lengthy waiting periods, making arbitrary requirements, etc….

I find it hard to believe no one in Nevada has challenged that state’s adoption of a offense based tiers from what I believe was an actual risk based. It is becoming a common theme in other states that you must have risk based and is becoming more entrenched with every state SC win.

@miker If AK state gov’t does what you say about using their own payroll for staff to administer this “safety test” for those who apply to be removed, then that presents potential conflicts of interest (COI) because the state has an inherent interest in keeping people on the registry out of “safety” and thus the administering the “safety test” could be skewed towards maintaining that goal vs using independently verified experts who are not in the system and have not COIs with clients or the state. This is where a group in AK similar to ACSOL raises issues to ensure… Read more »

So perhaps that is why the court says the due process defect in the law can be cured by making the former offender prove a negative instead of having the state prove a positive. Same old BS.

I want to read the dissents to see if the other 2 justices would have found no due process violation.

The dissent is at the end of the ruling. Essentially they say: 1. The law should receive a low level of scrutiny because the legislature made a finding that sex offenders are dangerous and it is important to regulate them. 2. Sex offenders already had their hearing before they were convicted.. the registration requirement is based on the conviction so it has already been tailored to the offender. 3. It would be difficult to set standards by which someone could prove they are not dangerous, so why bother trying. 4. If a hearing is allowed, it should only allow for… Read more »

I have yet to read the Opinion, but it appears to be a nice one for us in the “win” column. I would find it supremely ironic if AK appeals this to SCOTUS, SCOTUS takes it, and then rules in a way that chips away at Smith v. Doe–which for those not in the know also came out of AK. What hit me between the eyes was that same phrase that seems to be bubbling to the top in more and more cases: “individualized risk-assessment.” I wholly believe the (slow) propagation of that concept is due to the 6th CCoA… Read more »

Yes, it might be good for us for AK to appeal it to SCOTUS. Or it might be bad. But I doubt they will do that since the AK Supremes told them how to get around the “defect”.

It looks like they left it up to the superior court to set the standards for the hearing. They did that because they didn’t want to overturn the law. They said that if they overturned the law, the online registry would go dark and offenders would stop registering until the legislature could pass a new law. They worried there would be challenges if the new law is applied retroactively.

It is a win, but perhaps with no teeth.

What can you do with a database more contrary to individual liberty than to indenture humans to them ( database) & their mandatory maintenance?

It was always about constitutional USES THERE OF. BIG BROTHER OPTED FOR UNFETTERED USE THERE OF! To maintain the appearance of political legitimacy via good faith. It was those who chose AK to begin with as the test case. The presumption that more was necessary evidences what was in place prior was ineffective. To presume no man learns, nor has capacity to do so, whittles away the foundations of human justice systems themselves.

I’m glad that the AK Supreme Court found that the AK registration law is unconstitutional on due process grounds. I’m dismayed that the AK Supreme Court also provided a recipe to the AK Legislature to overcome the defect.

The AK Supremes are, of course, telling the legislature how to get around the “defect” in the law. The procedure that the legislature puts in place will no doubt be one that almost no “sex offender” will be able to prevail with.

WOW…this is BIG. And from the state which helped to bring us the “frightening and high” ruling from SCOTUS. I hope this sticks!

Not sure having the burden of proof is any “due Process” This is a good sign but it will most likely end up with a high bar that the majority will not be able to hurdle Not to mention the costs to show an individuals “risk”

So let me see if I’ve got this straight. For everyone currently on the Alaska registry, tough luck. But before anyone new can be added, they must have a hearing?

Sorry, I didn’t read the whole decision. Is there something which gives current registrants retro-active opportunity for a hearing?

This is a decision for all to celebrate. This is a beginning to an end of EVERYONE registering in conformity for years……

My take is that now anyone can file petition in AK state court and demand a determination hearing until the legislature sets up some judicial process. So now AK and Hawaii SC have found unconstitutional without risk assessments, these states surround CA so I would bet the CA SC would fall right in line with these other liberal courts.

Don’t you think it is more likely to be an administrative process than a judicial one? I’m not sure about Alaska, but in most states the point at which we are required to register is upon parole or the start of probation, and it is an administrative procedure. The judicial phase is over by then. As someone else mentioned, it’s going to be pretty hard to show non-dangerousness at that point, so unless the process is one that can be repeated down the road, I suspect not many will be able to do so. Yet, the courts may say that… Read more »

The problem here, is that the US governments has invented a lie that most of the world believes, including the courts. There is too much egg of faces and too much money in powerful, crooked hands for this to go away soon. I am glad to hear the news and we have the truth and it will be a turtle’s pace to catch-up with the lying rabbit.

@Harry, Their databases are viewed as key to maintaining their political security. Queer how the D’s are chiding the breakup of big tech, when they sold registrants out to big data cerca 94. Party of the little guy, me thinks not. FAANG firms are heading that off by lobbying efforts in congress. Amazon is bankrupting so many former big $ donors ( shopko in WI) that politicians are feeling the pinch. Billionaires fighting over unsure markets and politicians looking for votes and campaign cash. Rs these days ARE ALL BIG DATA, and attacking the surveillance saints who desperately want to… Read more »

I have a question. Which of us even had this case on their radar? This sort of took us by surprise. I suppose good news is always best as a surprise, but I’m starting to wonder if there is a way to have a better database of all of the litigation going on out there. I know there has been some effort to do that, but I never saw this case on any list.

As if the founders had not considered ALL CRIMES when contemplating the RATIFICATION of a prohibition upon congressional use of ex post law making. Art1. As if ” legitimate public interest ” IS TRUTHFULLY reflected in the CHOICE to use ex post facto language. “Was in prison for.” THE RATIFICATION OF CERTAIN PROHIBITION ITSELF SUPERSEDES any notions of justifiable use by congresses thereafter. By definition use of ex post facto laws to exact retribution MUST FIRST ORIGINATE NECESSARILY from within the people’s house with intent satisfactorily demonstrated by the class being targeted – criminals. SOR itself was at its heart… Read more »

Registrants are no more at risk of re-offending than those convicted of other crimes. Why should registrants have to somehow “prove” they are no longer a risk to the community when many of them were never a risk to the community to begin with? We take away the driver’s licenses of those convicted of DUI’s for various amounts of time. Some have to complete safety driving courses or have devices installed in their cars in order for them to be allowed to drive again. There’s no way to know that they’re not a risk behind the wheel, but we let… Read more »

SOs are actually far, far less likely to re-offend yet this ridiculous and life-altering registration regime persists.

So true! Imagine if a drunk driver had to prove they are not a danger to society. It’s very expensive for a registered citizen to have to do this and in most cases we don’t have jobs in the bad states. I recently registered as I have for almost two decades. I decide to read my registered emails. Low and behold they mis spell one of my emails so I tell them. They ask how long has this been wrong? I respond….. I don’t know because I didn’t mis spell my email you did. Then they go get a detective… Read more »

Kat, I was reading this thinking the same thing. It’s really annoying and inflammatory to think how so many people in our boat get the shit end of the stick when it comes to “justice” “due process” and moving on with our effing lives.

This is huge!
Sure, it sides with the Legislature, but if we can tie this in with Kelley v Municipal in CA, maybe we can show how this may be done. Maybe it could be shown as a way to give judges leeway.

Rome was not built in a day. I will take due process over waiting years any day.

plain and simple 99% of our government is EVIL !!!

Im incarcerated ONCE a year when I have to WASTE MY TIME, MONEY FOR GAS and FORCED to goto the PIG DEPARTMENT and ANSWER Questions in front of a PAPER PUSHER !

In time this will make it around and be challenged ALL OVER and thrown out EVERYWHERE, At least here in CA any NEW law can not be retroactive, and eventually the WHOLE Registry will have to be done away with !!

Same stuff. These “hearings” to prove a negative will be like the petitioning process and Certificate of Rehabilitation process.

I’m pretty jaded, unfortunately, when it comes to our corrupt government.

As this AK decision has swirled around in the back of my cob-webbed brain the last few days, it struck me that Doe didn’t challenge the validity of the regulatory scheme (Smith) nor, beyond the ridiculous “you can’t make me because I’m from VA” claim, his having had his Due Process (DP) opportunity somewhere along the line (CT DPS). What Doe seems to have done is gone the next step and challenged the ongoing DP deprivation and the lack of any procedure to escape it. An interesting take, and obviously one with which a majority of the AK SC agreed.… Read more »

Correction: the above was by me, AJ, not AK. Between the abbreviation for Alaska and the proximity of the J and K keys, I mistyped my own moniker. I knew I was getting tired and needed to do one more proof. I didn’t realize I needed to proof my own name. 🙂

While reading the Wayne Logan piece the AK SC mentioned in Footnote 134, Mr. Logan makes the exact point I was fumbling for: ***** [CT DPS v. Doe], while of critical importance, concerned government refusal to allow individuals to contest placement on a registry, not lack of access to relief postregistration. Surprisingly, to date the latter issue has seemingly been directly addressed on only three occasions, once in Tennessee and twice in West Virginia, and was rejected. . . . Despite the large shadow cast by [CT DPS], a persuasive claim can be made that a finding of current dangerousness,… Read more »

@AJ

But, procedural due process challenges dont require a right being fundamental like a substantive due process challenge. So wouldnt they just need to show that the burden and deprivations by being put on the list did not get the adequate amount of due process based on whatever deprevations are claimed?

@Chris F: I’m not 100% sure I get what you’re getting at…but I’ll take a stab anyway. 🙂 Yes, SDP is probably the “meatier” of the two. In the thumbnail understanding I have of them, SDP challenges go after the power the State claims it has in doing this or that, while PDP challenges go after the procedure in which the State administers this or that. Put another way, SDP goes after the law itself; PDP goes after how the law is applied. What I gather from Humphries and find perhaps helpful is there was no SDP violation (the law… Read more »

@AJ can you just explain for now what you mean by “… we’re now 1-3 in court …”? Sorry, it’s just not registering with me.

@CR:
I wondered if I was a bit too vague on that 1-3, but obviously I ran with it anyway. It’s a reference to the statement from Mr. Logan that a post-deprivation challenge has been tried three times (1x TN; 2x WV) and failed every time. Now we have the Alaska challenge, so we have one in the win column. Ergo 1-3.

Everyone is missing the most important point. Since every challenge to the registry has evoked the SCOTUS case for Alaska, having Alaska now say that their original scheme is wholly different then originally permitted means…….EVERY SCHEME IS NO LONGER SAFE UNDER SMITH v DOE

@KM: “having Alaska now say that their original scheme is wholly different then originally permitted means…….EVERY SCHEME IS NO LONGER SAFE UNDER SMITH v DOE” —– Not true. The exact AK law (Smith v. Doe) that SCOTUS upheld as Federally Constitutional in 2003 was found as-applied unconstitutional by the AK SC in 2004. Did that change anything regarding Smith? Absolutely not. The only thing cases like this show me is that there may be better traction in State Courts versus Federal ones. While all courts must abide by SCOTUS rulings, State constitutions and courts many times provide better, broader rights… Read more »

@AJ

Okay, so the registries may not be found unconstitutional and go away, but is there any chance the retro-active application of the registries could be challenged as ex-post facto violations (for those of us convicted before registries were implemented or those of us who were not required to register at time of sentencing)?

@Mike G:
IMO, unless and until it’s deemed something other than a non-punitive regulatory scheme (whether LEO-only or public), no. Or unless and until SCOTUS overturns Calder v. Bull (221 years of stare decisis staring decidedly at us–and SCOTUS has reiterated how important THAT is, Constitution and rule of law be damned), no. I’d pin my hopes on some sort of wisdom developing in the State Courts before I would expect either of the others to occur.

I disagree. This new case essentially says that the decided aspects of the AK registry by SCOTUS aren’t applicable anymore because the registry is very different than originally decided by SCOTUS. This means, new cases aren’t protected by Smith v Doe because, as we all know, the registry has expanded in ways never considered by SCOTUS.

@KM: “This means, new cases aren’t protected by Smith v Doe because, as we all know, the registry has expanded in ways never considered by SCOTUS.” —– I respect your disagreement, and I personally agree with the tendency and trend. However, show me where in Smith SCOTUS put a limit on what a State can do. Smith merely said what the State already *had done* was kosher. Show me in AWA where Congress put a limit on what a State can do. AWA merely says “do at least this or you may lose Federal funding.” Both are floors, not ceilings.… Read more »

@Fed court splits, Alaska was chosen specifically to disguise ” showing up” aspects of SOR supervision. Avoiding the ” custody” extensions promulgated ” in it’s necessary operation” was key to maintaining a civil intent, but that was part 2of the courts initial question as a prima facie issue. Was there an easily recognizable ex post statute. SCOTUS acknowledged that part in the affirmative given ” A person who was in prison for,…..P&P for,….A sex crime. ” One obvious clue had to be countered by another thus the ” preamble. ” This reminds me of the time in biology dissection of… Read more »

No problem AJ, you have been very active and busy jumping from discussion to discussion. 🙂 Actually, what I was pointing out, is that, while a Substantive Due Process argument has the high hurdle to overcome of proving fundamental rights have been affected, a Procedural Due Process claim does not. PDP can be any type of deprivation of liberty or increased burdens where you just need to show that procedures were not adequate when compared with the deprivation and burdens placed on you. For instance, it might be fine for a court clerk to decide you shouldnt have a parking… Read more »

@Chris,
The key to maintaining substantive ground for appeals( direct or indirect) is having not entered into plea bargain and the waiver of rights. While the plea ” bargain” often decreases vulnerability to incarceration ( exposure) for The presumption indicted it also has two caveats:
1.ADMITTANCE OF GUILT
2 VOLUNTARY WAIVER OF RIGHT.
Each are found in Trial codes and are highly standardised
The Substantive rights are found in state’s trial, sentencing and Appeal codes. Others can be found in statutes of limitations, by class or ” crimes” section.

While it is a great step forward that a court recognizes the lack of due process to allow removal from the registry, it falls way short of the need for due process to be put on the list in the first place. The judiciary needs to grow the balls to insist it, not the legislature, should decide the need to be on a registry and the duration during the fair sentencing portion of the trial where both sides state their case. Then, like any judicially determined restriction, it can be requested in the future to be re evaluated and removed… Read more »

Yeah AJ you made the brilliant point that it is the ongoing public notification and ongoing liberty interest being violated because of the continuous registration and notification that is unconstitutional without a determination hearing. This is how the Hawaii SC court explained it point blank. State v. Guidry, 105 Hawaii 222, 96 P.3d 242, 251-52 (2004) and of course the Bani case. “The type of deprivation that flows from Hawaii’s [California’s] absolute lifetime registration statute does not involve stigma, but rather, infringes upon an individual’s right to be free from perpetual government intrusion. This goes to the very heart of… Read more »

@Fedup, I will definitely check out the source you linked as it appears you can maybe search cases for CA SC as well. I have not tried it yet to see if it is fairly easy to find related 290 decisions and the most up-to-date decisions.

It seems to me, the burden of proof that a sex offender is or is not dangerous should be on the prosecution, not the sex offender himself.

I have thought long and quietly about this “ruling”. I must approach it from the standpoint of something non-emotional. I have read the voluminous comments as well. All good ones and from all corners of the spectrum. Now, I may not be the brightest or most Legally adept, nor may I be the most introspective (often accused by the wife, LOL), but I have a thought. I feel this ruling is a “foundation”. Why do I say this? Regardless, it’s a nod to “Due Process”. Now, it’s not a perfect ruling by far. It still has gaps the size of… Read more »

@FinallyOffTheReg: Thank you for the post and analysis, and I’m solidly in your camp. It is only persuasive outside the AK courts, but it’s another persuasive case on the heap for us to offer a judge. IMO, every win, EVERY win, is another grain of sand on our side of the scales. Those scales are starting to tip ever so slightly our way. I wholly believe there will come a critical mass of State and lower Federal decisions that will “compel” SCOTUS to react (@Roger (I think it was him) is right, SCOTUS follows societal shifts, it doesn’t start them).… Read more »

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